Being cheapest is not enough: Talboom scores 55/55 on price and still loses the N16 study contract to Tractebel
Engineering firm Talboom submitted the lowest price for the study contract on the access roads to Puurs Dorp and took the maximum on the price criterion, but finished fourth and twice last of six bidders on the quality criteria; its extreme-urgency application against the award to Tractebel Engineering failed because the ranking formulas in the tender documents fully explained the scoring and the award report was concrete about every weak point.
What happened?
The Flemish Roads and Traffic Agency issued a general call for tenders for the study contract ‘N16 – access roads Puurs Dorp’, estimated at 254,000 euros excluding VAT. Special tender document no. 1M3D8E/12/33 contained four award criteria — price (55 points), plan of approach (25), quality plan (10) and qualifications and experience of the staff assigned (10) — and the formulas deriving points from rankings: for price p = P × L/R, for the qualitative criteria p = P × [I – (R – 1)] / I, with an expert assessment committee drawing up the ranking. Six bidders submitted offers. Talboom was cheapest at 246,901.71 euros including VAT and took the maximum 55 points on price; Tractebel Engineering followed with 43.3. But on the plan of approach Talboom came fourth (‘lightly conceived’, hours underestimated, spatial aspect absent, no consultation with the Flemish Government Architect although the tender documents expressly require it), on the quality plan last (‘substantively very cursory’, ‘timing very cursory’) and on qualifications last again (‘no experience with projects of this scale’, limited team, no back-up for team members). Final score: Tractebel 82.5 points, Talboom 70.8, third overall. The administrator-general awarded the contract on 11 January 2013 to Tractebel for 259,225.99 euros excluding VAT. Talboom sought suspension under extreme urgency with a single plea: the scoring was nowhere adequately reasoned, the jury report had never been provided, and the assessments were too cursory — why is a vision that is ‘lightly conceived’ worth 13 points and one that is ‘too cursory’ worth 17? The Council of State dissected the complaints one by one. The scoring? It follows directly from the formulas in the tender documents, which Talboom did not criticise, applied to the ranking in the award report. The missing jury report? The assessment in section 4.1.2 of the award report is the record of the jury’s assessment; no other report exists. The cursory reasoning? On the plan of approach Talboom passed over its other weak points in silence and did not even claim it should have ranked above Tractebel; on qualifications it was the only bidder without plus points and did not contest the finding about its lack of experience. As for the quality plan, the Council calculated that even a third place — behind the only two bidders with plus points — could not tip the overall ranking in Talboom’s favour, so it lacked an interest in that complaint; for good measure, the offers before the Council showed that no other bidder had submitted so cursory a quality plan. The single plea was not serious; the application was rejected on 4 April 2013. The Region’s admissibility objections did not even need to be addressed.
Why does this matter?
The judgment shows how a contracting authority arms itself against reasoning complaints with well-drafted tender documents. Because the scoring followed mechanically from formulas announced in advance and a reasoned ranking, the debate shifted from ‘how did you arrive at those points?’ to ‘is the ranking correct?’ — and there the Council reviews only marginally. Whoever wants to attack the ranking must take on the full assessment picture: Talboom singled out one qualification each time (‘lightly conceived’ versus ‘too cursory’) but left the other, uncontested weak points — underestimated hours, no consultation with the Government Architect, no experience with projects of this scale — untouched, and nowhere claimed it should have ranked above the chosen bidder. The judgment also illustrates the interest test per complaint: an error in one criterion matters only if it can overturn the final ranking; the Council simply ran the formula and saw that even a better quality-plan score would not carry Talboom past Tractebel. And it recalls a classic that bidders keep underestimating: in a call for tenders with quality criteria, the lowest price is not a trump card but one criterion among others — 55/55 on price did not outweigh two last places on quality.
The lesson
For bidders: read the award criteria as a points budget, not a formality. A ranking formula such as p = P × [I – (R – 1)] / I makes every place in the ranking directly worth points — whoever sinks on three qualitative criteria will not win it back with the lowest price. Devote as much care to the quality plan and the team as to pricing, and incorporate express requirements of the tender documents (such as the consultation with the Flemish Government Architect) literally into your plan of approach. If you litigate afterwards, attack the ranking itself, rebut all the weak points and show that a correct assessment would have placed you above the chosen bidder — otherwise you lack an interest. For contracting authorities: publish your formulas in the tender documents and have the award report list concrete strengths and weaknesses per offer. That combination — transparent arithmetic plus concrete jury assessment — held up effortlessly here.
Ask yourself
Before submitting, did you calculate how many points each place in the ranking is worth, and where you can make the difference — on price or on the qualitative criteria? Does your plan of approach satisfy every express requirement of the tender documents, down to the prescribed consultation? If you challenge an award: do you rebut all the weak points in the award report, or do you single out one qualification while the rest stands uncontested? Can you show that a correct assessment would have ranked you above the chosen bidder — and thus that your complaint can really change the final ranking? And do you know that since the law of 23 December 2009 no serious harm difficult to repair is required, but that you must proceed through the extreme-urgency procedure?
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 →