Almost half the price and still losing: in a call for tenders the weighted award criteria decide, not a 'principle of economy' — and an announced new decision suspends the appeal period
S.E.S. bid almost 300,000 euros less than the winner I.C.E.D.D. for the premium-expert contract of the Brussels environment institute, but lost lot 1 because in a call for tenders the weighted criteria decide — where price counted for only 15% and its offer scored 7 out of 10 against 8.46 for I.C.E.D.D. — and the Council of State dismissed its action, which it first held admissible because the institute had itself suspended the appeal period by holding out the prospect of a new decision.
What happened?
On 28 July 2010, in the Bulletin of Tenders and the Official Journal of the European Union, the Brussels Institute for Environmental Management (I.B.G.E.) published a general call for tenders for a services contract entitled 'Premium expert for the professional sectors and technical & scientific assistance in the examination of premium-application files'. The contract had two lots: lot 1 (premiums professional sectors and CEB-2) and lot 2 (premiums passive and low-energy constructions). The special specifications described the contract as providing technical and scientific assistance in examining premium applications. The award criteria were weighted: the quality of the proposed services for 35%, the project planning for 30%, the overall quality of the offer for 20% and the price for 15%. For lot 1, S.E.S. and the non-profit I.C.E.D.D. submitted an offer; for lot 2, S.E.S. and a temporary association. By letter of 5 November 2010 the institute informed S.E.S. that its offers had not been selected, with an analysis report attached. In its decision to litigate, S.E.S. endorsed the analysis for lot 2, so its action concerned only the award of lot 1. A first hurdle was the time limit. The notification was sent by registered post on 5 November 2010; the 60-day appeal period would make the action, lodged on 7 January 2011, out of time. But on 10 November 2010 Fabienne Demarteau, the contact person named in the notification, wrote to S.E.S. that 'the letter cancelling and replacing our previous notification' was awaiting signature, with the final version of the report instead of the draft mistakenly sent, and that the official time limits would run from that new dispatch. That message, read together with an email of 18 November 2010, showed that the institute was contemplating not merely a new notification but a new award decision — otherwise the file would not have to pass again by the inspectorate of finance and the minister. The Council of State held that, in those particular circumstances, the appeal period had been suspended at least between 10 and 18 November 2010, so that the action of 7 January 2011 was not out of time. The objection of lateness was rejected and the action declared admissible. On the merits, all pleas failed. The plea on access to the 'final' decision and administrative openness ran into the specific regime of book IIbis of the law of 24 December 1993, stricter than the general openness rules. The plea on the formal reasoning and the sub-criterion 'chosen approach for analysing the files, proposed methodology' could not succeed: S.E.S. scored 2 out of 4 and I.C.E.D.D. 3 out of 4, a difference it attributed to a database I.C.E.D.D. had built under a previous contract, but even adding that one point, its overall score (7 out of 10) stayed below that of I.C.E.D.D. (8.46 out of 10), so the ranking did not change and it had no interest in the plea. The Council rejected the plea on the 'principle of reasonableness' and the 'principle of economy' on principle: for lot 1 the price of S.E.S. was almost 300,000 euros — about half — lower than the winner's, but in a call for tenders article 16 of the law of 24 December 1993 requires the award to go to the regular offer that, in the light of the award criteria stated in the specifications, is the most advantageous; price counted here for 15 out of 100, and a 'principle of economy' cannot set the law aside to make the cheapest offer win after all. Finally the Council rejected the impartiality plea: the fact that Ismaïl Daoud had been employed by I.C.E.D.D. until 30 November 2009 and, at the time of the award, was an adviser in the cabinet of the minister who signed the decision, did not suffice — S.E.S. showed no concrete impact on impartiality or equality, article 78 of the royal decree of 8 January 1996 did not apply, and Daoud had submitted no offer himself. The Council dismissed the action and placed the costs, set at 175 euros, on S.E.S.
Why does this matter?
The heart of this judgment is one of the most underrated rules of procurement law: in a call for tenders the winner is not the cheapest but the most advantageous offer, determined by the award criteria and their weighting. S.E.S. bid almost half as much, but price counted for only 15%, and on the qualitative criteria it scored lower. The 'principle of economy' it invoked does not exist as a norm overriding the law and the pre-published weighting; the opposite — an authority departing from its own criteria to pick the cheapest — would itself breach transparency and equality. A second lesson concerns interest in a plea: contesting one point on a sub-criterion is pointless if, even after correction, the ranking stays the same. And a third, often forgotten lesson lies in admissibility: an authority that during the appeal period lets it be understood it will take a new decision creates uncertainty that suspends the period. What was meant to correct an error here kept the door to the Council of State open longer. The impartiality plea, finally, is a reminder that a merely past link between a person and a bidder does not suffice: whoever invokes a conflict of interest must show a concrete influence on the decision.
The lesson
If you are a bidder in a call for tenders, do not be dazzled by your own keen price: the contract goes to the offer that is most advantageous under the weighted criteria, and if price counts for only 15%, you lose to a more expensive but higher-scoring competitor. If you want to contest a score, first calculate whether your correction would reverse the ranking — if you score 7 out of 10 against 8.46, one extra point changes nothing and you lack interest. If you invoke a conflict of interest, show the concrete impact on the decision, not just a past link. If you are an authority, two warnings apply. Do not depart from your own award criteria and weighting, not even for budgetary reasons — that breaches equality and transparency. And be unambiguous in your notification: if during the appeal period you let it be understood that a new decision is coming, you suspend the period yourself and keep the dispute open longer.
Ask yourself
Do you know that in a call for tenders the weighted award criteria decide, and not the lowest price — especially when price carries only limited weight (here 15%)? Before contesting a score, have you checked whether your correction would actually change the ranking, so that you have an interest in the plea? If you invoke a conflict of interest, can you show a concrete influence on the decision rather than merely a past link? And as an authority: is your notification unambiguous about which decision starts the appeal period, so that you do not inadvertently suspend it by holding out the prospect of a new decision?
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 →