Bike lease suspended: three assessment errors on quality criterion bridge the points gap
The Council of State suspends the award of a framework agreement for operational bike leasing because the contracting authority made three errors in assessing the quality criterion — an unreasonable minus for mandatory maintenance, an unmotivated plus for social employment, and a non-comparative plus for a discount voucher — which together bridge the 2.5-point gap.
What happened?
HR Rail, operating in the special sectors, tendered a framework agreement for operational bike leasing for railway staff through a negotiated procedure with prior call for competition. Three companies submitted tenders. After evaluation on price (40 points) and quality (60 points), o2o ranked first with 96.5/100 (38.5/40 price + 58/60 quality) and Cyclis second with 94/100 (40/40 price + 54/60 quality). Cyclis challenged three elements of the quality assessment. First, the evaluation report had assigned a minus because Cyclis allegedly required annual maintenance. However, in a clarification response Cyclis had indicated that annual maintenance was 'always strongly recommended' but that HR Rail itself could decide whether to make it mandatory through the bike policy. The Council found it unreasonable to read this answer as imposing an obligation. Second, o2o received a plus for working with bicycle workshops focused on social employment. But the report itself noted that both tenderers work with 'similar (or even the same) subcontractors'. The report did not explain why o2o's network nonetheless constituted added value. The explanation HR Rail provided afterwards in a letter of 4 January 2024 — that o2o's network was more extensive — was a post-factum justification that could not be taken into account. Third, o2o received a plus for offering a discount voucher in case of theft. However, the report referred to 'a' discount voucher without any comparison with the discount Cyclis also offered. Here too, the subsequent explanation was an impermissible after-the-fact supplement. Each of these three elements represented one difference point under the methodology used. Together they yielded three points, sufficient to bridge the total gap of 2.5. The second plea, concerning the absence of an evaluation methodology, was found not serious: the global assessment with advantages and disadvantages according to their relative value was a customary method already announced in the specifications.
Why does this matter?
This ruling illustrates how a quality assessment can fail on seemingly minor elements that on closer inspection lack proper substantiation. It shows that a response to a clarification question co-determines the full context of a tender, that a plus for an element both tenderers offer through the same subcontractors requires specific justification, and that a comparative assessment must actually be comparative. Moreover, the ruling confirms that a subsequent explanation — however plausible — cannot replace the formal reasoning in the evaluation report.
The lesson
When assigning pluses and minuses on a quality criterion, every assessment must be internally consistent and comparative. If two tenderers offer a comparable element but only one receives a plus, this requires explicit comparative reasoning in the report itself. A response to a clarification question can change the scope of a tender — read it carefully and incorporate it in your assessment. Never justify after the fact something that is not in the report: the Council of State will not take it into account.
Ask yourself
As contracting authority: is every plus or minus in my evaluation report supported by comparative reasoning? Have I correctly interpreted responses to clarification questions? Does everything underpinning my assessment actually appear in the report, or am I supplementing after the fact? As tenderer: have I formulated clearly and unambiguously in my tender and clarifications what I offer, leaving no room for an unfavourable reading?
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 →