An award criterion that lets the winner pick which prices actually count is no criterion at all
The Council of State suspends the award of four lots of an advertising-vitrine framework agreement for Brussels bus shelters because the financial criterion 'redevance' was calculated using indicative weightings on a product mix that the operator was never required to commit to — making the criterion speculative and invalid.
What happened?
In November 2018 the STIB/MIVB launched a negotiated procedure for a framework agreement on the operation of advertising vitrines in bus shelters across the 19 Brussels municipalities — divided into six lots. Only two bidders: JCDecaux Street Furniture Belgium and Clear Channel Belgium (CCB). On 24 May 2019 the STIB awarded lot 1 to JCDecaux and lots 2, 3, 4 and 5 to CCB. JCDecaux filed an extreme-urgency request before the Council of State on 11 June 2019 to challenge the award of those last four lots. The heart of the fourth plea: the award criterion 'redevance' (royalty), worth 55 of 100 points. That criterion broke down into a 'guaranteed amount' (40%) and a 'percentage on operating revenues' (15%). For the guaranteed amount, bidders had to quote a royalty per location for three vitrine types — analogue (weighted at 70%), rotating (20%) and digital (10%) — plus a separate 'Spectacular' category. The problem: those weightings were labelled by the STIB itself in the specification as 'purely indicative', and the specification left the eventual operator free to decide, location by location, which type of vitrine to actually install. JCDecaux argued: this lets the operator stick to the display formats with the lowest royalty it had offered, while abandoning its expensive promises (that had earned it points in the bid comparison). That makes bids incomparable, the criterion speculative and the supposedly 'most economically advantageous' bid impossible to identify. On 6 May 2019 the STIB had itself asked JCDecaux which percentages of analogue/rotating/digital/Spectacular it projected — when JCDecaux replied that the specification did not require this, the STIB conceded that 'it cannot and will not modify the framework agreement on points so essential'. The STIB raised several admissibility objections: JCDecaux had no interest (a suspension would derail the whole procedure including lot 1), the specification clause obliging bidders to flag 'inaccuracies' upfront had not been respected, and the Council only carries out marginal review in extreme urgency. The Council dismissed all of them. There is interest for lots 2-5; not for lot 1 (JCDecaux had won there — no interest in suspension). The clause on prior notification covers 'correctable imprecisions' — not the fundamental irregularity of an award criterion, and the STIB had itself acknowledged that the criterion could no longer be modified. On the merits: the criterion 'redevance / guaranteed amount' is prima facie irregular, both under article 81 of the Procurement Act and article 55 of the Concessions Act. Since the operator freely chooses which vitrine types to install — independently of the royalties it quoted — the contracting authority cannot identify the most economically advantageous bid. The arrangement 'appears to favour speculative practices'. That irregularity contaminates the entire specification and the whole procedure. The Council suspends the award to CCB for lots 2, 3, 4 and 5; the action is dismissed for the remainder (and for lot 1).
Why does this matter?
This judgment exposes a principle that reaches far beyond advertising vitrines: an award criterion that measures a price component the operator can later avoid is not a lawful criterion. For bid managers this is a ground of challenge: scan every financial criterion to verify whether the prices you quote will actually bind you during execution. For contracting authorities it is a warning: as soon as you weight variable demands in a framework agreement using 'indicative' percentages without a hard commitment to the mix, you risk having the entire specification fall over. Note also that a 'you-should-have-flagged-it' clause does not shield the contracting authority from a fundamental irregularity in an award criterion — that clause covers correctable imprecisions only.
The lesson
As contracting authority: in a framework agreement, never weight prices for products or services whose mix the operator can freely set after award. Demand a hard commitment to volumes per category, or build in a mechanism that forces the operator to honour in execution the mix proposed in its bid. As bid manager: in a framework with several price components and 'indicative' weightings you have a serious plea — make sure you can move to the Council in extreme urgency within 15 days of notification.
Ask yourself
Look at the financial criteria in your specification: can the winning bidder, after award, sidestep its most expensive price commitment by selecting a different product type? If yes, the criterion may be speculative — and challengeable.
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 →