Giving everyone 30 out of 30 for methodology? Then you've switched off your own award criterion
The Council of State suspends the 36-month auditor college contract awarded by FOREM to KPMG–Joiris Rousseaux, because the contracting authority gave all four ranked bidders the maximum score (30/30) on the 'audit approach and planning' criterion without concretely explaining why their methodologies were considered equivalent — even though the gap between the first and third ranked bidder on the other two criteria was only 1.08 points.
What happened?
On 10 April 2015 FOREM (the Walloon vocational training and employment office) advertised a contract for a college of statutory auditors. Duration: 36 months. Procedure: restricted call for tenders with European publication. The specifications required a college of at least two auditing firms given the complexity of FOREM's structure and the size of its budgets — including European funds (ESF, EASI, EGF). Three award criteria were laid down, with the following weighting: - Volume of working hours: 35 points - Price: 35 points - Audit approach and intervention planning: 30 points Four temporary associations submitted offers and were selected. A single auditing firm that had not associated itself with another was rejected. The four remaining offers were declared regular. On 23 December 2015 the Minister of Budget and Civil Service signed the award decision in favour of the association KPMG Réviseurs d'Entreprises and Joiris Rousseaux & Co. R.S.M. Interaudit and M.K.S. & Partners — ranked third — filed an extreme-urgency action on 7 January 2016. In the reasoned award decision FOREM gave all four bidders exactly the same score on the third criterion: 30 out of 30, the absolute maximum. The motivation read literally: 'On the basis of this analysis, it appears that the proposed methodologies meet the requirements of the mission and proved to be equivalent. The same score was therefore awarded to each bidder, namely the maximum of 30 points.' The report listed sub-points (work programme, knowledge of public organisations, planning around the 30 April closing date, communication arrangements, task distribution within the college), but without describing per bidder or per item why the offers were considered equivalent. The applicants pointed out that, after the scoring on the first two criteria (35 points each), the gap between their offer and that of KPMG–Joiris Rousseaux was only 1.08 points. Differentiation on the third criterion, worth 30 points, could perfectly have changed the ranking. FOREM replied that the Institute of Statutory Auditors itself had suggested that this type of criterion could be dropped — since all auditors are subject to the same deontological standards — and that it was 'not manifestly unreasonable' to treat the offers as equivalent when no distinguishing element could be identified. Acting Chamber President Serge Bodart was unconvinced. In a call for tenders, the comparison of offers per criterion and the allocation of points according to the predefined weighting leaves the contracting authority a 'very wide margin of appreciation' — but its corollary is an 'extended duty to give reasons'. A bare allocation of points or a general unsupported assertion does not amount to motivation. The motivation must rely on a descriptive evaluation referring concretely to the contents of the offer. When all offers — as here — receive the same score on one criterion, the motivation must enable each bidder and the reviewing court to understand why that identical score was awarded and why it was impossible to distinguish the offers. That is especially the case when everyone receives the maximum: by giving everyone the same score, the contracting authority neutralises one of the award criteria it had itself imposed. The motivation given — 'the proposed methodologies meet the requirements and proved equivalent' — could, according to the Council, be copied into any award decision regardless of the actual content of the offers. It is not enough to say that an analysis was carried out; that analysis must also be visible. The argument that the Institute of Statutory Auditors recommended abolishing the criterion did not help FOREM either: FOREM itself chose to keep the criterion and weight it at 30 out of 100. Afterwards effectively neutralising it — without concrete justification — is therefore unacceptable. The plea was held serious. The Council ordered suspension of the award decision of 23 December 2015. The judgment was made immediately enforceable and notified by fax.
Why does this matter?
For contracting authorities this is the textbook example of a quality criterion that ends up distinguishing nothing. When 'methodology' or 'approach' is included for 30 points out of 100, and all bidders receive 30/30 with the motivation 'all equivalent', the criterion is effectively neutralised and only the mathematical gap on price and hours remains. That is a direct breach of the transparency and equal-treatment principles, because bidders built their offer assuming those 30 points could actually be earned or lost. For bid managers of unsuccessful bidders this is a gold mine: the moment you see in the award report that one of the three or four criteria has handed everyone the same score (especially the maximum) with no per-bidder motivation, you have a strong ground for suspension — especially if the gap on the remaining criteria is small.
The lesson
As a contracting authority: when you notice that all bidders perform 'equivalently' on a criterion, do not automatically hand everyone the maximum — describe per offer the concrete elements of the methodology or approach that support the score, and explain why the offers really could not be distinguished there (not in general terms, but referring to specific passages). As a bid manager: open your award report immediately on the score-detail table. Did all ranked bidders get exactly the same score on one criterion? And is your gap on the remaining criteria mathematically smaller than the value of the neutralised criterion? Then you can base an extreme-urgency action on the motivation defect of that criterion alone — irrespective of the substantive assessment.
Ask yourself
Open the score matrix in your most recent award report. Are there one or more criteria where all ranked bidders received exactly the same number of points? Is the motivation a variation on 'the offers are equivalent' or 'meet the requirements', without per-offer references to concrete passages? Then calculate your gap on the other criteria. Is that gap smaller than the value of the neutralised criterion? If yes, you are in the same configuration as R.S.M. Interaudit — and a suspension plea on the motivation defect is available.
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 →