A final score of 72.83 to 78.12: the Council of State upholds the award of an energy group-purchase project to iChoosr
Prize Wize lost to iChoosr the contract to facilitate green-electricity group purchases for the Province of Antwerp and accused the Province of an arbitrary, opaque assessment of the ‘vision’ and ‘action plan’ criteria; but the Council of State held that the plus and minus points were stated concretely enough and that the scores — 13 to 30 for vision — stayed within the authority’s margin of appraisal, and dismissed the suspension under extreme urgency.
What happened?
On 10 April 2014 the standing deputation of the Province of Antwerp launched a public contract for the appointment of an external project facilitator for group purchases of energy and related initiatives, for organisations, businesses and private individuals in the province. The contract was to be awarded through the negotiated procedure with prior publication at European level. The specifications laid down three award criteria of equal weight (each out of 33.33 points): vision, action plan and price. Two service providers applied — BV Prize Wize Holding and bvba iChoosr — and both were selected. After a negotiation round on 12 May 2014, the award report of 20 May 2014 concluded that iChoosr had submitted the most economically advantageous regular bid. Because Prize Wize had asked for its vision note to be treated as confidential, iChoosr’s vision note was also treated as confidential and its description was placed in a confidential annex to the report. The scores diverged sharply on the vision criterion — 13 for Prize Wize against 30 for iChoosr — while action plan (26.50 to 29) and price (33.33 to 19.12) were closer. The final score was 72.83 for Prize Wize and 78.12 for iChoosr. The deputation approved the report and awarded the contract to iChoosr on 5 June 2014. On 20 June 2014 Prize Wize turned to the Council of State with an action for annulment and an application for suspension under extreme urgency. In a single plea it accused the Province of assessing the vision and action-plan criteria arbitrarily and opaquely: it was said to be impossible to trace which plus or minus points justified which score, so that the principles of equality, transparency, due care and the duty to state reasons were breached. The Council examined whether there was a serious plea or a manifest illegality. It accepted, prima facie, that an assessment based on weighing plus and minus points in the light of the description in the specifications is not in itself arbitrary. It treated the entry ‘13/30’ for Prize Wize, instead of ‘13/33.33’, as a mere clerical slip. On the substance, the Province had in fact taken account of Prize Wize’s concrete proposals for the 2014 group purchase — these received ‘a largely positive score’ because they met the basic requirements of the specifications — but the word ‘largely’ pointed to criticism, including of a proposed ‘retention product’ deemed hard to reconcile with the desired transparency. For the five new initiatives Prize Wize proposed from 2015, the Province found ‘no positive elements’: too little concrete and substantiated, not innovative, and lacking clear coherence. The Council found that characterisation prima facie more accurate than Prize Wize’s claim that the initiatives were ‘described in detail’, all the more so because iChoosr developed comparable ideas — an adapted auction model and an Energy Community — far more concretely, over five full pages and with an illustrated application, against half a page for Prize Wize. That Prize Wize calls itself an ‘established and renowned company’ did not make a low vision score unreasonable, since it did not show that it was known precisely for its forward vision. The Council concluded that the Province had not awarded points arbitrarily, that the plus and minus points in the decision of 5 June 2014 were clear enough to allow substantive criticism, and that the divergent scoring (13 to 30) stayed within the deputation’s margin of appraisal. Even if the criticism of the small difference on ‘action plan’ (26.5 instead of 29) were well founded, iChoosr would still obtain the highest total score. The sole plea was not serious; the Council dismissed the application on 15 July 2014.
Why does this matter?
The judgment touches the heart of many procurement disputes: the assessment of qualitative award criteria such as ‘vision’ and ‘action plan’, where the authority has a wide margin of appraisal but must still be able to justify its choice. The Council confirms two things that matter for both sides. For authorities: a method scoring on the basis of weighing plus and minus points in the light of the specifications is not in itself arbitrary, provided those plus and minus points appear concretely enough in the award decision to let the bidder engage with them on the merits. For bidders: challenging an unfavourable score does not succeed with generalities or with the claim that one is, after all, an ‘established’ player. One must rebut the concrete criticism point by point — here the criticism of the ‘retention product’ and of the lack of concrete, innovative future initiatives went unanswered. The judgment also shows that a large score gap (13 to 30 on one criterion) is not automatically unreasonable or disproportionate: it may simply reflect an eight-page bid against a fourteen-page one with far more concrete elaboration. Finally, it recalls that an arithmetical slip in the decision (‘/30’ instead of ‘/33.33’) does not undo the award where nothing points to a genuine error.
The lesson
If you are a bidder and score low on a qualitative criterion such as ‘vision’ or ‘action plan’, first read carefully which plus and minus points the authority identifies, and rebut them concretely, point by point, with references to your bid. General references to ‘major themes’, the claim that you are an established player, or the assertion that your proposals were ‘described in detail’ do not suffice if the authority concretely reasons the contrary. Show too that your proposals match what the specifications expressly require — here the economy of scale of a large group and transparent pricing. If you are an authority, the judgment offers reassurance: you may assess qualitative criteria by weighing plus and minus points and exercise a wide margin of appraisal, as long as you set out those plus and minus points concretely enough in the award decision for the bidder to contest them on the merits. A large score gap is permitted if it rests on those points; correct minor slips, but know that they do not vitiate the decision where the intention is clear.
Ask yourself
Before challenging a low score on a qualitative criterion, have you rebutted each minus point cited by the authority concretely and with reference to your bid? Do your proposals match what the specifications expressly require (such as economy of scale and transparency), or do you stay at the level of generalities? As an authority: are the plus and minus points in your award decision concrete enough to let the bidder engage with them on the merits? Do you realise that a large score gap on a criterion is not automatically unreasonable where it rests on clearly stated plus and minus points? Do you know that an arithmetical slip (‘13/30’ instead of ‘13/33.33’) does not undo the award where nothing reveals a genuine error?
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 →