Comparing price without counting the editions: the Council suspends the FOREM award because the tender documents compared apples with pears
FOREM awarded a services contract for disseminating job and training information to Corelio Connect Sud because it offered the lowest flat price per unit of surface, but the Council of State suspended that decision under extreme urgency because the tender documents compared prices without accounting for the number of editions needed to cover Wallonia — thirty-nine for Corelio’s Proximag against twenty-two for JOBSREGIONS’s Vlan — so that the cheapest bid was in reality the most expensive per advertisement.
What happened?
The Walloon Office for Vocational Training and Employment (FOREM), through a notice of 25 June 2013 (Bulletin of Awards) and 28 June 2013 (Official Journal of the EU), launched a general call for tenders with European publicity for a public services contract: disseminating information on job vacancies, training and events (contract MPS135500). The contract was concluded on a price schedule, for four years and with an undetermined volume. Four award criteria set the ranking: price (80 points), optimisation of the delivery time of the material (10 points), layout of the advertisements (5 points) and simultaneous dissemination (5 points). Two undertakings submitted a timely bid: JOBSREGIONS and Corelio Connect Sud. By a decision of 4 November 2013, FOREM awarded the contract to Corelio Connect Sud, which, with a flat price of 0.25 euro excluding VAT (0.30 euro including) per millimetre-column, obtained the full 80 points for the price criterion. JOBSREGIONS sought suspension under extreme urgency. Its central complaint: the tender documents had prices compared on the basis of the flat amount per unit of surface of the advertisements to be published, without factoring in the coefficient flowing from the number and coverage areas of the editions. Corelio disseminates through the magazine Proximag, which has thirty-nine local editions to cover the whole of Wallonia; JOBSREGIONS works with the weekly Vlan, which manages with twenty-two editions. By comparing only the price per unit of surface, FOREM reached an award to Corelio without seeing that its price per advertisement was in reality much higher for the contracting authority. The Council of State held, prima facie, that the tender documents, by imposing an unsuitable comparison procedure, infringed article 16 of the Law of 24 December 1993 and article 115 of the Royal Decree of 8 January 1996, and that FOREM thereby failed the principles of good administration and the equal treatment of bidders. That an applicant may raise the unlawfulness of the tender documents in support of its action against the award decision, the Council expressly confirmed. The serious character of this first plea sufficed to order the suspension. The second plea, on the validity of the signature under Corelio’s bid, JOBSREGIONS dropped at the hearing after receiving the necessary information. Weighing the interests, the Council saw no element outweighing the suspension. It suspended the award decision of 4 November 2013, dismissed the action for the remainder, ordered the immediate execution of the judgment and reserved the costs.
Why does this matter?
This judgment goes to the heart of what a price criterion is supposed to do: make bids genuinely comparable. A flat price per unit of surface looks objective, but becomes misleading once the unit costs one bidder something quite different from another. Whoever wants to cover Wallonia with thirty-nine editions must buy that surface thirty-nine times; whoever manages with twenty-two costs the authority less per reader reached. A tender document that does not build that difference into the comparison does not measure what it claims to measure, and thereby breaches equal treatment. The judgment also matters for a second reason: it reaffirms that a bidder may invoke the unlawfulness of the tender documents when challenging the resulting award decision — it need not have attacked the documents earlier. Finally, it shows that a well-chosen plea suffices in an extreme-urgency procedure: once one plea is serious and the balance of interests does not counter it, suspension follows, without the remaining complaints having to be examined.
The lesson
If you are the contracting authority, build your price criterion so that it makes bids genuinely comparable. A price per unit of surface or time is only usable if you factor in the coefficients that determine the real cost — here the number of editions needed for the required coverage. If you do not measure that, you may award to the most expensive rather than the cheapest, and you risk suspension for breach of equal treatment. If you are a bidder and find that the comparison mechanism in the tender documents structurally disadvantages your bid, you can raise that unlawfulness in your action against the award decision; you do not lose that right by not having formally challenged the documents earlier. Substantiate your complaint concretely — here with the hard figure of thirty-nine against twenty-two editions — because it is that tangible comparison that made the plea serious.
Ask yourself
Does your price criterion measure the real cost to the authority, or merely a flat amount per unit that costs one bidder something quite different from another? Do your tender documents factor in the coefficients (number of editions, coverage, volumes) needed to make bids genuinely comparable? Do you know, as a bidder, that you can invoke the unlawfulness of the tender documents in your action against the award, even without having challenged them earlier? Can you support your complaint with concrete, verifiable figures rather than a point of principle?
About this database
The Council of State (Raad van State / Conseil d'État) is Belgium's supreme administrative court. In disputes over public procurement — from contract awards to tenderer exclusions — the Council of State is the final arbiter. The rulings in this database are summarised by TenderWolf in plain language, with practical lessons for tenderers and contracting authorities. View all rulings →