Whoever challenges a quality score bears the burden of proof: the Council rejects the suspension of the TMVW tools contract awarded to Hoffmann
The Council of State rejects the action of Vanas seeking, under extreme urgency, the suspension of the TMVW's award of a framework agreement for the supply of tools to Hoffmann Quality Tools, because Vanas withdrew most of its first ground at the hearing and, for the rest, did not show with the required prima facie seriousness that the equal quality score (9/15) was wrong — a reference to three of more than one hundred and forty item numbers and subjective brand comparisons did not suffice.
What happened?
On 12 May 2014 the TMVW (the inter-municipal water-supply company for Flanders) launched a supplies contract by open call for tenders, for a ‘framework agreement for the supply of tools’ for a four-year term. The contract was published in the Official Journal of the European Union on 9 July 2014 and in the Belgian Bulletin of Tenders on 4 July 2014; the specifications bore reference AD-ALL-14-10-33. For the tools, the specifications distinguished list A — of which the bidder had to offer every item, on pain of irregularity — from a free list B of related catalogue items. Bidders had to meet the access requirements (a declaration on honour that they were not in a ground for exclusion, with certificates on tax, criminal record, non-bankruptcy and social security to be produced later, the TMVW itself obtaining the non-bankruptcy and social-security certificates under article 60 of the Royal Decree of 15 July 2011) and the qualitative selection (a recent bank declaration and at least three references of at least 30,000 euros per year excluding VAT over the last three years). The award was based on the tender price (62.5 %, made up of the basic tender amount for 55 % and the volume discount for 7.5 %), technical quality (15 %), the service offered (15 %) and sustainability (7.5 %). For the latter three, qualitative criteria the TMVW used a starting-score method — 9 out of 15 for the second and third criteria, 4.5 out of 7.5 for the fourth — adjusted only for ‘markedly positive or negative elements’. On 4 September 2014 six offers were opened. All bidders were selected, some subject to an administrative reservation of documents still to be filed. After examining regularity and assessing the offers against the award criteria, Vanas's offer was ranked third and Hoffmann Quality Tools' first; it was proposed to award the contract to Hoffmann for a tender amount of 38,754.30 euros per year, excluding VAT. Vanas was informed of this by letter of 28 November 2014, enclosing the award report with the identity of the other bidders redacted. Vanas sought suspension under extreme urgency. Because, alongside the coordinated laws on the Council of State, the law of 17 June 2013 also applied, the Council only had to examine whether at least one serious ground or a manifest illegality was present. The first ground — drawn from breaches of articles 5 and 20 of the law of 15 June 2006, articles 58, 61 and 67 of the Royal Decree of 15 July 2011 and of the patere legem principle, the duty of care and the duty to give substantive reasons — accused the TMVW of having selected Hoffmann despite an ‘administrative reservation’ and without verifying its declaration on honour. The first branch, however, rested on an assumption the administrative file contradicted: there was no reservation on Hoffmann's selection, and Vanas withdrew that branch, confirmed at the hearing. The second branch was also withdrawn at the hearing; the new content Vanas then gave it — that Hoffmann had not filed a bank declaration in the prescribed model form — the Council found not serious: from that mere fact it could not prima facie be inferred that the declaration absolutely could not be accepted, and the alleged lack of ‘firm commitments’ in the bank declaration was not equivalent to failing to meet the requirement that a bank declaration be produced. The first ground was therefore not serious as a whole. By its second ground — breach of article 25 of the law of 15 June 2006 and of the duties of substantive reasoning, care and equality — Vanas argued that Hoffmann had received the same starting score of 9 out of 15 for the quality criterion as it had, whereas, given the price differences, it was impossible that Hoffmann had bid with the same quality (A-brand tools). The Council noted that Vanas substantiated its criticism only by reference to three of the more than one hundred and forty item numbers in the inventory (GE0180 a rebar bar, GE0409 a hacksaw frame and GE0344/GE0347 a ratchet ring spanner), which in itself cast doubt on any sufficient effect on the scores. For the hacksaw frame (GE0409), Vanas got no further than the mere subjective assertion that its Bahco brand was qualitatively better than Hoffmann's Holex brand. For the ratchet ring spanners (GE0344/GE0347), Vanas complained that no account had been taken of conformity with standard ISO 1711-1, but that conformity was not required in the technical sheet, Vanas did not show that it was such a ‘marked’ positive element that a departure from the starting score was warranted, and its argument partly lacked factual basis (for GE0347 Hoffmann had not bid with the criticised Garant brand, and Hoffmann's catalogue price for GE0344 was higher than Vanas's — which undermined the link Vanas drew between lower price and lower quality). For the rebar bar (GE0180) too, Vanas pointed to the increased hardness of its product (about 61 HRC against the required about 60 HRC), without showing that this difference was ‘marked’ enough to raise the score, while here too Hoffmann's catalogue price was higher. The second ground was thus not serious either. Since neither ground proved serious, the Council rejected the action for suspension and ordered Vanas to pay the costs — a roll fee of 200 euros and a procedural indemnity of 700 euros (the basic amount, with a maximum of 2,800 euros for public-procurement disputes) to the TMVW, and 150 euros for Hoffmann's intervention.
Why does this matter?
For an unsuccessful bidder, the qualitative assessment of the offers is often the most frustrating part of an award: one is convinced of delivering better work or better materials, yet receives the same or even a lower score than a cheaper competitor. This judgment shows how high the threshold is to challenge that assessment successfully. The Council does not take the authority's place and does not re-assess the offers itself; it only checks whether the bidder shows, with the required prima facie seriousness, that the authority made a manifest error of assessment. A method with a fixed starting score adjusted only for ‘marked’ positive or negative elements is in itself lawful: whoever wants to undermine it must show that its offer presented a genuinely striking advantage the authority wrongly ignored, or that the competitor's offer did not meet the technical requirements. Subjective brand comparisons, invoking standards the specifications did not require, and highlighting a handful of items from an inventory of hundreds do not suffice for that. Equally instructive is what happened to the first ground: a ground based on an assumption the administrative file does not confirm — here a non-existent ‘administrative reservation’ — leads nowhere, and a new complaint raised only at the hearing (the bank declaration not in the right model) is judged strictly. Finally, the judgment illustrates the cost risk: the losing bidder pays the roll fee, a procedural indemnity to the authority and the costs of the intervening awardee.
The lesson
If, as an unsuccessful bidder, you want to challenge the qualitative assessment of your offer or that of the winner, build a concrete, technically substantiated file before going to the Council. Show not only that your materials are better, but that they offer a ‘marked’ — striking, objectively verifiable — advantage the authority should have rewarded under its own method, or that the winner's offer does not meet the technical sheets of the specifications. A subjective brand comparison, or invoking a standard the specifications did not require, carries no weight. Do not pick a handful of items from an inventory of hundreds without explaining what measurable effect that would have on the final scores. Set out your complaints fully and in time in the application: complaints surfacing only at the hearing, and grounds resting on a misreading of the administrative file, are rejected. And factor in the cost of a failed suspension: roll fee, a procedural indemnity to the authority and the costs of the intervening awardee.
Ask yourself
Suppose your offer and the winner's received the same score for the quality criterion, while you are convinced you offered better materials. Can you show, for each disputed item, concretely that your product offered a ‘marked’ advantage over what the technical sheet required — or that the winner's product fell short of it? Are you relying on a standard or specification the specifications actually imposed, or on a requirement you consider relevant but which was not in them? Does your criticism have a measurable effect on the final scores, or do you only single out a few items from a much larger inventory? Does your ground rest on documents actually in the administrative file, or on an assumption? And have you included all your complaints fully in your application, so you need not improvise them at the hearing?
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 →