Cheapest bid (€42,350), 40/40 on price — and still loses, because the work plan didn't spell out the 'obvious' tender requirements
The Council of State rejects Abesim's extreme-urgency suspension, the lowest bidder for an OVAM phytoremediation study: it scored a perfect 40/40 on price (€42,350 vs €77,755 for the winner) but lost so heavily on quality that OVAM was entitled to award the contract to the more expensive consortium of UHasselt-Bio2clean-Arcadis-Witteveen+Bos.
What happened?
In June 2016, OVAM published a simplified negotiated procedure with publication for a 'Code of good practice for phytoremediation' — practical examples and guidelines for using plants in soil remediation. The award criteria were transparent: quality of the work plan for 60 points (split into three equal sub-criteria of 20 points each — result-orientation, method/planning/approach, flexibility/deployability of staff), price for 40 points with the fixed formula 40 × (lowest price / bidder's price). Four bidders responded, three were selected. After negotiations the prices stood at: Abesim €42,350, Tauw Belgium €60,476, JV University of Hasselt-Bio2clean-Arcadis-Witteveen+Bos €77,755. Abesim got the full 40/40 on price, Tauw 28/40, the consortium 22/40. On quality the picture reversed: the consortium scored 55/60 (19+18+18), Tauw 45/60 (15+16+14), Abesim only 34/60 (11+11+12). Final scores: 77 for the consortium, 74 for Abesim, 73 for Tauw. OVAM awarded the contract on 12 October 2016 to the consortium for €64,260 excl. VAT. Abesim filed an extreme-urgency suspension with two grounds. The second ground — examined first because of its broader scope — accused OVAM of including elements in its evaluation that were not in the tender specification: the absence of plant-associated micro-organisms or of an explicit advisory request to the soil remediation sector in the work plan, the team composition being weighted, the 'presentation' of the practical examples being scored, faster execution timelines getting more points, and 'size, diversity and complementarity' of the team being counted under 'flexibility and deployability'. The first ground attacked the concrete scoring — 11 points for Abesim against 19 for the winner on result-orientation, and the proposition that 'obvious' tender requirements need not be repeated in the work plan. The Council rejected both grounds. On the second: a 'reasonably attentive' bidder could fit each of OVAM's elements into the criteria as formulated in the specification. That a work plan must also describe the mandatory tasks (micro-organisms, sector advice, sustainability) to score high on 'result-orientation' is self-evident. That 'feasibility of the proposed timelines' allows scoring a planning that fits 'comfortably' within the deadline higher than one that fits 'just' within it does not exceed the specification. That 'presentation' of the case descriptions counts under 'method and approach' is defensible when the specification requires the overview to be 'comprehensible and attractive'. And that team size, diversity and complementarity are relevant for 'flexibility and deployability' is debatable but not unforeseeable. On the first ground the Council fell back on a classic limit: the contracting authority has wide discretion in evaluating bids and the Council does not redo that evaluation, certainly not in extreme-urgency proceedings; it sanctions only a prima facie unlawful, careless or unreasonable assessment. The mere fact that a bidder disagrees on certain points does not make the evaluation careless. That OVAM called Abesim's plan 'summary' and 'incomplete' because mandatory sub-tasks were missing was not an unjustified finding: it is not for the contracting authority to fill in what the bidder considers 'obvious'. The application was rejected, with €700 in costs awarded to OVAM.
Why does this matter?
Two instructive lessons in one. First: even a price difference of nearly 50% (€42,350 against €77,755) is not enough if your work plan is below par — a 60/40 weighting in favour of quality does the rest. For bid writers: the temptation to skip 'mandatory' tender requirements in your work plan because they're 'obvious' is counterproductive. The contracting authority scores what is in your bid, not what is in the specification. Second: the idea that a contracting authority must spell out every sub-criterion in minute detail is wrong. A 'reasonably attentive' bidder is expected to draw the logical links between the criterion ('flexibility and deployability'), the steer the specification gives ('to be demonstrated by team composition') and the objectives of the contract. What plausibly falls under a criterion may be weighed — even if it isn't there literally.
The lesson
When you write a bid, also describe the 'obvious' mandatory sub-tasks explicitly in your work plan. The contracting authority scores what it reads, not what it assumes you know. A lower price will not compensate for a thin work plan when the weighting is, say, 60% quality and 40% price — calculate in advance how many quality points you can afford to miss. If you are a contracting authority and you split a criterion into sub-criteria, you may give each sub-criterion a plausible interpretation without spelling out every interpretation in the specification — but apply those interpretations consistently to all bidders and back the scores with detailed motivation.
Ask yourself
As a bidder: have you described in your work plan every mandatory sub-task from the specification, including the 'self-evident' ones? Have you flagged for each sub-criterion concretely why your approach should score high? With a 60/40 weighting quality/price: how many quality points can you afford to miss before your price advantage no longer makes up the gap? As a contracting authority: for every assessment in your award report — could a bidder who has only read the specification reasonably expect this element to be weighed? And if the winner is 50% more expensive than the runner-up: do you motivate the quality gap with enough detail to convince a court it's not a ready-made finding?
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 →