Emergency suspension request against award of framework agreement for towing and storage of vehicles rejected – discretion in quality assessment, no special price investigation required with only two tenderers
The Council of State rejected the emergency suspension request by BV G. against the award by Police Zone 5366 Geel-Laakdal-Meerhout of a framework agreement for towing, recovery and storage of vehicles to BV M., because none of the three grounds — concerning the environmental permit, the quality assessment and the price investigation — was serious: the contracting authority had discretion in the qualitative evaluation, the specifications expressly allowed the use of subcontractors, and a price difference of 16 percent with only two tenderers did not require a special price investigation.
What happened?
Police Zone 5366 Geel-Laakdal-Meerhout tendered a framework agreement for towing, recovery and storage of vehicles through an open procedure. Award criteria were price (60 points) and quality (40 points). Only two tenderers submitted bids: BV M. at €470,466.15 incl. VAT and BV G. at €560,092.06 incl. VAT. BV M. scored 88% (60 for price + 28 or 70% for quality) and BV G. scored 86.4% (50.4 for price + 36 or 90% for quality). The contract was awarded to BV M. BV G. raised three grounds. The first concerned BV M.'s environmental permit allegedly not meeting Vlarem II noise restrictions for garage workshops. The Council found this not serious: the specifications did not require environmental permits at submission, and BV G.'s own permit also lacked an explicit noise exception. The second ground challenged the quality assessment, arguing BV M.'s storage facilities were subcontractors', response times were unrealistic, and experience was insufficient. The Council found this not serious: the specifications expressly allowed subcontractors and used the terms 'tenderer', 'contractor' and 'towing service' interchangeably, so subcontractors' facilities could be counted; assessment of response times and experience fell within the authority's discretion. The third ground argued a special price investigation was required. The Council found that a 16% price difference with only two tenderers and an estimate based on indexed 2021 prices with lower volumes did not prima facie warrant a special investigation. The request was rejected. Costs (€200 court fee, €26 contribution) were charged to the applicant, who also owed €770 procedural compensation to the respondent and €150 to the intervening party.
Why does this matter?
This ruling illustrates the discretion contracting authorities have in qualitative evaluation and the Council's restrained review. A tenderer who scores higher on quality but loses on total score due to higher price cannot simply express dissatisfaction — it must demonstrate a manifest assessment error. The ruling also clarifies that when specifications allow subcontracting, subcontractors' facilities may be counted in the qualitative assessment. Regarding price investigation, a 16% price difference with only two tenderers and an estimate based on older indexed prices does not by itself require a special investigation.
The lesson
In qualitative evaluation of tenders, the contracting authority has broad discretion that the Council of State reviews only marginally. When specifications allow subcontracting, subcontractors' facilities and resources may be counted. A 16% price difference with only two tenderers and an estimate based on older indexed prices does not require a special price investigation. As a contracting authority, ensure your qualitative assessment is concretely motivated; as a tenderer, demonstrate concretely why the assessment would be manifestly incorrect.
Ask yourself
As a tenderer: can you demonstrate a manifest assessment error, or are you merely expressing dissatisfaction with the score? Have you checked whether the specifications allow subcontracting and whether subcontractors' facilities may therefore be counted? And is the price difference with the chosen tenderer sufficiently significant — given the number of tenderers and reliability of the estimate — to justify a special price investigation? As a contracting authority: is your qualitative assessment concretely motivated and traceable in the file?
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 →