'Best on two criteria beats best on one' is not a motivation — it's an arithmetic error
The Council of State suspends Infrabel's award to Schenck Process for 15 train weighing systems because the contracting authority simply added up two of three criteria against one, without weighing the actual gap between bids per criterion — while Lloyd's Register was €1.65 million cheaper.
What happened?
In November 2010 Infrabel launched a negotiated procedure with European publication for the delivery of dynamic train weighing systems — estimated at €6.8 million under special tender 6000059705. The contract had two lots: lot 1 (one prototype) and lot 2 (15 installations). The award criteria were price (great importance), measurement quality (great importance) and operating and maintenance costs (medium importance). How exactly the criteria were to be balanced was not specified — only the verbal weights. After prototype testing with the two top bidders — Lloyd's Register Rail Europe and Schenck Process — Infrabel reached these figures. Price: Lloyd's €210,000 per unit, Schenck €319,900 — a €1.65 million difference for 15 systems in Lloyd's favour. Measurement quality: Schenck scored better on calibration and dispersion tests (Lloyd's had 9.4% overshoot vs. 2% for Schenck). Maintenance: €10,070/unit/year for Lloyd's vs. €5,930 for Schenck. The award proposal concluded curtly: Schenck wins two criteria (quality and maintenance), Lloyd's wins one (price), so Schenck holds 'a first-rank offer'. On 30 March 2015 Infrabel's board awarded the framework agreement to Schenck for €4,798,500. Lloyd's filed for extreme urgency. The pivotal finding: the contracting authority may not 'count' criteria as if they were votes. By only checking who is 'best' per criterion — without measuring the actual gap between bids — Infrabel disregarded the differentiating function of the criteria. A large price gap must be able to outweigh a small quality gap, and vice versa. Infrabel argued in its pleadings that the quality difference more than compensated for the higher price, but that weighing nowhere (explicitly) underpinned the contested decision itself. At the very least this is a breach of the formal duty to state reasons. The suspension was granted.
Why does this matter?
For bid managers who lose on price despite a sizeable price advantage: this arrest is gold. If the authority justifies its choice with 'the other side wins more criteria', you have a serious ground. For contracting authorities: it is not enough to weigh criteria with the words 'great' and 'medium' importance and then simply count. You must compare bids in actual distance per criterion, not just in ranking — and that weighing must appear in the decision itself, not in the defence.
The lesson
When you write a multi-criteria award decision: don't only measure 'who won which criterion', measure 'how big the gap was per criterion'. Spell out the trade-off between price advantage and quality advantage. And if you did not give numerical weighting coefficients in the specifications, you must be all the more explicit in the award decision about why criterion X outweighs criterion Y in this concrete comparison.
Ask yourself
Take your last award decision. Cross out anything that only says 'who won criteria A, B, C'. What remains that addresses the factual distance between bids per criterion and the relative weighting? If you cannot point to where you weighed whether a price advantage of X% outweighs a quality advantage of Y points in this contract, your motivation will not survive an urgent suspension 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 →