‘The CVs are not convincing’: Hydroscan fails selection for the Flemish Brabant verge management plans and loses
The province of Flemish Brabant excluded Hydroscan at the qualitative selection stage for drawing up verge management plans because the CVs and organisation chart submitted did not show sufficient ecological knowledge, and the Council of State dismissed the application for suspension: the reasoning was no mere formula, the province did not have to disclose its assessment of the other bidders, and Hydroscan nowhere substantiated concretely why its team did meet the criterion.
What happened?
The province of Flemish Brabant launched an open call for tenders for a services contract described in the notice as a ‘services contract for drawing up verge management plans in the Flemish Brabant municipalities’. The cost was estimated at 313,970 euros. The contract was published in the Bulletin of Tenders on 25 June 2012 and in the Official Journal of the European Union on 29 June 2012. Article 1.16.2 of the specifications required, as a second technical capacity requirement, that bidders submit an organisation chart and the composition of their employee members, stating their educational and professional qualifications, from which capacity had to appear — specified in brackets as ‘extensive ecological knowledge to perform the contract properly’ — together with a short curriculum vitae and a reference list for each of those persons. The award criteria were price (60 points), proposed substantive approach (20 points) and proposed organisational approach (20 points). Five bids were opened on 19 September 2012, including those of Hydroscan and Antea Belgium. A jury assessed the bids; for the four other than Hydroscan’s an assessment table was drawn up, in which Antea obtained the highest score with 82.56 out of 100. On 13 December 2012 the provincial executive decided that Hydroscan was excluded ‘on the basis of the CVs, the organisation chart and the composition of the employee members […] from which the capacity and extensive ecological knowledge to perform the contract properly do not sufficiently appear’, selected the four other bidders and awarded the contract to Antea Belgium. On Hydroscan the decision concluded: ‘Hydroscan’s bid does not give us sufficient guarantee that the contract can be properly performed in all its aspects. The various CVs added cannot convince that sufficient knowledge, experience and training is present among the various persons proposed to perform the contract properly.’ By letter of 18 December 2012 Hydroscan received the award decision, but with the names of the other bidders — apart from the successful one — and their assessment redacted. On 2 January 2013 Hydroscan applied for suspension under extreme urgency; Antea Belgium intervened. The Council of State rejected both pleas. The first plea, on formal and substantive reasoning, opened with a methodological rebuke: Hydroscan had not clearly linked its grievances to the norms allegedly breached and confused formal with substantive reasoning, and reasoning with notification; the Council cannot then be expected to identify, characterise and assess every argument itself. On the substance, the Council held that the reasoning was no formula: it specifically indicated what was missing — technical capacity and extensive ecological knowledge — and why, namely because the CVs submitted did not demonstrate sufficient knowledge, experience and training. Moreover, Hydroscan did not show that this reasoning left it unable to judge whether a defence was worthwhile; on the contrary, it extensively contested the assessment itself and therefore knew the reasons. As to substantive reasoning, Hydroscan asserted that it met the criterion but nowhere substantiated concretely in its application how its organisation chart, qualifications, CVs and reference lists demonstrated the required ecological knowledge; it is not for the Council to supplement the plea and examine the bid itself. The reference to the general company profile and corporate references was beside the point, since article 1.16.2 concerned not the undertaking but the staff members proposed. The province moreover set out convincingly in its note that the successful bidder’s team leaders and members had more relevant training, against which Hydroscan offered no defence at the hearing. That Hydroscan could not tell why the others did qualify overlooked article 65/8, § 1, 1°: an unsuccessful bidder is told only the reasons for its own non-selection. In its second plea Hydroscan accused the province of arbitrariness on account of vague and general selection criteria. That too failed: the criterion expressly required extensive ecological knowledge and specified documents evidencing it, Hydroscan had raised no questions or observations about the specifications, and stated in its own first plea that it had devoted ample attention to the project team — showing that it had indeed understood the criterion. Nor had any other bidder questioned it. The alleged breach of article 70 of the royal decree of 8 January 1996 was inadmissible, that article concerning financial and economic standing. The Council admitted Antea Belgium’s intervention, dismissed the application and ordered Hydroscan to pay the costs of the application, assessed at 175 euros, and the intervening party the costs of its intervention, assessed at 125 euros. The province’s objection of inadmissibility no longer needed to be decided.
Why does this matter?
Bidders who go to the Council of State after a non-selection often do so with a sense of injustice and a thin file: the reasoning ‘does not convince’, so it must be defective. This judgment shows why that argument rarely succeeds. First, the Council draws a strict distinction between formal reasoning — does the decision contain enough to let you judge whether a defence is worthwhile? — and substantive reasoning — is the assessment correct? Anyone who conflates the two and fails to attach grievances to a specific norm risks the Council not even characterising them. Second, the duty to give formal reasons works against the party invoking it after attacking the decision on the merits: by disputing that you failed to qualify, you prove that you knew the reasons. Third, it is not for the Council to read your bid for you. An application asserting that the team does possess the required knowledge, without showing per person which training, which reference and which experience demonstrates it, is an assertion, not a plea. Finally, the judgment confirms a point that often surprises bidders: you have no right to the reasons why the others were selected. Article 65/8, § 1, 1° limits disclosure to your own non-selection. The decision must still be formally reasoned on that point, but that is different from a right to see your competitors’ assessment.
The lesson
If you are not selected, do not attack the decision by complaining that the reasoning is ‘a formula’ where it does state what was missing and why. Build your application the other way round: take the selection criterion word for word and show, for each required document and each proposed person, that you meet it — which training, which reference, which experience. Attach every grievance to one specific norm and keep formal reasoning, substantive reasoning and notification apart. If you find a selection criterion too vague, raise questions during the award procedure or record a reservation when submitting; bidding without comment and complaining about vagueness afterwards undermines you — certainly if you write in the same application that you devoted ample attention to that criterion. For authorities, the lesson is reassuring but not unconditional: brief reasoning suffices, provided it names which requirement was not demonstrated and on what basis. And you need not explain to the unsuccessful bidder why its competitors passed selection.
Ask yourself
Does your application show, for each required document and each proposed staff member, that you meet the selection criterion, or does it stop at asserting that you do? Are you confusing ‘does the decision say enough’ with ‘is the assessment correct’, and is every grievance attached to one norm? Did you raise questions or record a reservation during the procedure about a criterion you now find too vague? Do you know that as an unsuccessful bidder you are entitled only to the reasons for your own non-selection? And as an authority: does your reasoning concretely name which requirement was not demonstrated and on what basis, rather than merely saying a file does not convince?
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 →