Urgent suspension of framework agreement for archaeological research Infrabel — quality criterion neutralized by identical scores for all tenderers without concrete assessment of strengths and weaknesses — post factum motivation not accepted
The Council of State suspended Infrabel's award of a framework agreement for archaeological research and excavations in Flanders because the contracting authority had effectively neutralized the quality criterion (50 points) by awarding all five tenderers identical scores of 0.5 on all sub-criteria with the sole motivation that the answer met the specifications, without any assessment of strengths and weaknesses, meaning no concrete evaluation was apparent and the quality assessment was insufficiently motivated and lacking in due care.
What happened?
Infrabel awarded a framework agreement for archaeological research and excavations for railway projects in Flanders via a negotiated procedure with prior call for competition (special sectors). Five tenderers submitted offers evaluated on financial criteria (50 points) and quality (50 points). The quality criterion used a four-point scale (0/0.25/0.5/1) based on a plan of approach assessed against three sub-criteria. Remarkably, all five tenderers received identical quality scores of 25/50, with the evaluation matrix stating for every sub-criterion and assessment element that 'the answer meets the specifications' (0.5 points) without any mention of strengths or weaknesses. The top two tenderers were invited for negotiations and a BAFO, after which the contract was awarded to the first-ranked tenderer. The Council found that the authority had effectively neutralized the quality criterion by assigning identical scores without concrete assessment, that it was improbable all five offers would have identical quality across all sub-criteria, and that the substantive evaluation first presented in the statement of observations constituted inadmissible post factum motivation.
Why does this matter?
This ruling demonstrates that including a quality criterion with a differentiating scoring scale requires actual differentiated application. Simply noting that all offers 'meet specifications' without identifying strengths and weaknesses neutralizes the criterion. Post factum motivation in procedural submissions cannot cure deficient motivation in the award decision itself.
The lesson
When using quality criteria with differentiating scales, document concrete strengths and weaknesses per offer per sub-criterion. Identical scores for all tenderers require specific justification. Post factum motivation is not accepted. As tenderer, challenge identical quality scores by identifying specific improvements in your offer.
Ask yourself
Does your evaluation matrix contain concrete assessments per sub-criterion per offer? Have you actually applied the differentiating scale from your specifications? Can you justify identical scores? Does the substantive assessment appear in the award decision itself, not first in procedural submissions?
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 →