The same degressive percentage does not automatically apply to every award criterion — read where weighting per item exists
The Council of State rejects the extreme-urgency action of Moments Furniture, which argued that Vivalia should also have applied the degressive percentages (100%, 70%, 40%...) globally to the 'technical aspects' criterion of 45 points — whereas the specifications applied those percentages only item by item, because there was a separate weighting per item in column D of the inventory.
What happened?
The Luxembourg-province intermunicipal company Vivalia awards a public supply contract for furniture for its retirement and care homes in Vielsalm and Chanly. The contract covers six lots, including lot 2 — bedroom furniture (bedside tables, chairs, geriatric armchairs, tables, refrigerators, TV brackets). Two bidders compete for lot 2: NV Moments Furniture and BVBA Jee-Bee. Article 7 of special tender specifications no. 1/018/2015 sets out four award criteria: technical aspects (45 points), price (45), warranty improvement (5) and delivery improvement (5). For 'technical aspects' the specifications describe a specific methodology: an expert committee (site directors, physiotherapists, head nurses, technical coordinator and residents) ranks 'for each item' the products proposed, on the basis of robustness, ergonomics, comfort, ease of use and maintenance. Then: 'Each item will receive a score based on its ranking and the weighting attributed to that item in the inventory (column D: item weightings).' With degressive percentages: 1st place 100%, 2nd 70%, 3rd 40%, 4th 10%, etc. The same percentages are foreseen for the warranty and delivery criteria, but without weighting per item — that evaluation is done for the lot as a whole. First awarding round: on 29 March 2016 Vivalia awards lot 2 to Moments Furniture for €450,721.86 incl. VAT. Jee-Bee challenges and obtains suspension on 29 June 2016 (judgment no. 235.269): Vivalia had compared the offers using different VAT rates for the geriatric armchairs — Jee-Bee 6%, Moments 21% — without ever consulting the VAT administration. On 17 November 2016 the Council annuls the award (judgment no. 236.446). Vivalia restarts the analysis, asks both bidders to specify the applicable VAT rate, and on 8 November 2016 awards lot 2 to Jee-Bee for €342,616 excl. VAT / €389,037.16 incl. VAT. Moments is informed on 5 December 2016 and files a new extreme-urgency action on 19 December 2016. The single ground: breach of the specifications and of the principle patere legem quam ipse fecisti. According to Moments, Vivalia should have applied the degressive percentages globally as well, after the per-item calculation. Concretely: Moments scores 65.4 out of 69 points on the technical table (overall first place), Jee-Bee 58.2 out of 69 (second). Vivalia converts this to 45 points using a simple ratio (45/69), giving 42.65 for Moments and 37.96 for Jee-Bee. Moments argues: I am globally first, so I should get 100% of 45 = 45 points and Jee-Bee as second 70% of 45 = 31.5 points. Under that calculation Moments would win the contract (92.84 vs 85.5 total). Proof of its reading: for the warranty and delivery criteria, Vivalia did apply the percentage globally (Moments 100%/80%, Jee-Bee 80%/100%). Acting chamber president David De Roy disagrees. The 'technical aspects' methodology consists of two interrelated elements: (1) a per-item ranking — each item being one piece of furniture — and (2) a per-item weighting in column D of the inventory establishing the maximum points obtainable per item. The degressive percentages were — prima facie — meant to be applied item by item. The sum of those item scores is then converted to the share of 'technical aspects' in the overall total (45 out of 100) via a coefficient. That is exactly what Vivalia did, and Moments does not challenge its own score of 42.65/45. The fact that for criteria 3 and 4 the percentage was applied globally is not relevant according to the Council: for warranty and delivery the specifications evaluate the lot as a whole, not 'item by item'. No weighting per item, no per-item calculation — the percentage logically applies to the global scoring there. Ground not serious. Application rejected. Costs reserved for the annulment proceedings.
Why does this matter?
Anyone setting up a scoring methodology with degressive percentages (100%, 70%, 40%, 10%) must be fully aware that the application depends on the structure of the criterion. If the criterion has a per-subitem weighting (such as a table with a 'weighting' column), the percentages are calculated per subitem and then totalled. If it does not, the percentages are applied globally to the total of the criterion. This seemingly technical distinction is no formality: it can, as here, make the difference between winning or losing a contract. For bidders it means that you must work through the scoring method in detail on a hypothetical scenario before submitting your bid — not at the result stage.
The lesson
Read the scoring method in the specifications not as a single block but criterion by criterion. For every award criterion that provides degressive percentages (100%/70%/40%...): check whether there is a weighting per subitem. If so → percentages are applied per subitem and then summed. If not → the percentage applies globally to the maximum total of that criterion. With the same percentage formula the application can fundamentally differ between criteria. This is not the contracting authority being incoherent — it is a consequence of the structure of the criterion.
Ask yourself
For every award criterion with degressive percentages, calculate a hypothetical scenario before submitting your bid: how is 100%/70%/40% concretely applied — to the global criterion or to each subitem? If the specifications include a 'weighting of items' table, it usually means item-by-item calculation. If in doubt: ask via written clarification before the bid deadline — those answers bind the contracting authority.
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 →