One kilometre counts for the price criterion, 287 km do not — an open invitation to speculation
The Council of State suspends the award of a multi-year coach transport contract to TRANSIBUS because the price criterion of the city of Mons added only the unit price for a single kilometre, without taking into account the actual distances to be driven — a method that allows structurally different price structures and invites speculation.
What happened?
At the end of December 2017, the city of Mons decided to launch a joint public contract for passenger transport by coach — a framework contract for both the city of Mons and its public welfare centre (CPAS). The city ran the procedure on behalf of both. Negotiated procedure with prior publication, published 11 January 2018. Three award criteria: price (first in importance), environmental respect, comfort. Submission deadline 8 February 2018. Two bidders submitted: TRANSIBUS Local Services and Eurobussing Wallonie. The calculation method for the price criterion was striking: 'The lowest bid price corresponds to the sum of the unit prices listed in the inventory (excluding the percentages requested in the inventory).' The inventory contained six fixed-price items for specific routes and one 'price/kilometre' item — but no estimated quantity was given for that latter item. Bidders therefore submitted a unit price based on a single kilometre driven, and that single kilometre counted in the sum. The bid analysis report concluded that the TRANSIBUS bid was the most economically advantageous, at EUR 1,087.40 excl. VAT. Eurobussing came in at EUR 2,130.53. The council awarded the contract to TRANSIBUS on 3 May 2018. Eurobussing took the matter to the Council of State in extreme urgency. The figures in the application made the problem visible. The specifications listed — by way of example — destinations as far as Spa (174 km one-way), Bredenne (143 km), De Panne (144 km), Saint-Hubert (152 km), Antwerp Zoo (159 km). Average return distance for the listed destinations: nearly 188 km. Eurobussing had quoted EUR 0.53 per kilometre. Based on the global amount TRANSIBUS gave for the six fixed-price items (EUR 1,052.40), Eurobussing could deduce that its competitor was likely charging up to EUR 2.40 per kilometre — almost five times as much. With a difference of EUR 1 per kilometre over an average return trip of 188 km, real costs run up to several hundred euros per trip. But in the price criterion, only EUR 0.53 was compared to EUR 2.40 for a single kilometre. Mons defended itself with a familiar argument: the method was clearly stated in the specifications, so all bidders could adjust their bids to the scoring system. Anyone who did not complain before the opening session under article 81 of the Royal Decree of 18 April 2017 had no standing to complain afterwards. And, Mons added, a method that predictably rewards low fixed prices and penalises high kilometre prices is not a legal defect — it is merely a choice by the contracting authority. The Council first rejects the article 81 objection: that article concerns only errors or omissions that make pricing impossible — not the irregularity of an award criterion as such. Eurobussing is therefore entitled to complain. On the merits: article 81 § 1 of the Act of 17 June 2016 obliges the contracting authority to award the contract on the basis of the most economically advantageous bid. When 'price/kilometre' in the inventory contains no estimated quantity and bidders only have to submit one unit price for one kilometre, the evaluation of the price criterion cannot 'take into account the importance that the kilometres travelled may have in determining the price the contracting parties will owe'. Worse: 'This method may lead to bids with significantly different price structures (as is also observed in this case) and may foster speculative practices.' As a result, the method does not allow the most economically advantageous bid to be identified for the 'Price' criterion. The plea is serious. Mons offers no counterweight in the balance of interests. The Council suspends the award.
Why does this matter?
The contracting authority's freedom to choose award criteria is not a freedom to call any sum a 'price criterion'. The criterion must genuinely be capable of identifying the most economically advantageous bid. A method that structurally allows different price structures — and thereby invites speculation — does not qualify, even if it is formally correct, transparent and non-discriminatory. For contracting authorities: in a contract where a fixed unit (kilometres, hours, items) will make up a large part of the actual costs, you must either include an estimated quantity in the inventory, or use a weighting formula that lets that item realistically count. Adding a unit price for a single kilometre to fixed-price items leads mathematically to an unusable comparison — TRANSIBUS won with EUR 1,087.40, Eurobussing at EUR 2,130.53, but the actual price comparison for the city and the CPAS over the contract term looks completely different. For bid managers: if you encounter a method that forces you to set high or low on a single component to reach the top of the scoring system, complain before the opening session under article 81 if it is an error or omission. But if you consider that the criterion itself is irregular — not because of an error in the documents but because it is unsuitable for identifying the most advantageous bid — then the Council of State remains open even after opening.
The lesson
If you design a price criterion for a service with a large variable component (kilometres, hours, units), you must either include a realistic estimated quantity in the inventory, or use a weighting formula that lets that item carry substantial weight. Simply adding a unit price for a single kilometre to fixed prices leads mathematically to an unusable comparison and, as this judgment shows, to a suspension. For bid managers: a price criterion that rewards contradictory bidding strategies (low fixed prices versus low kilometre prices) is likely irregular — challenge it, even after opening, on the ground that it cannot identify the most economically advantageous bid.
Ask yourself
If your price criterion adds a unit price for one unit (km, hour, item) to fixed-price items without an estimated quantity: can you show, over the contract term, that the difference in total cost between the top two bids actually points in the same direction as the difference in score? If not, redesign the criterion before publication.
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 →