Lowest tariff, best price — and lost anyway: how four small minus points cost a 10-year bicycle-sharing concession
The Council of State dismisses Marfina's extreme-urgency suspension against the award of the Antwerp bike-sharing concession to Donkey Republic — Marfina won on price and on tariff, but lost 14 points on quality because of an accumulation of details (a coaster brake that did not exist, a maintenance app not available in Dutch, a vague description of a social-employment partner) that each looked minor in isolation.
What happened?
BAM (Beheersmaatschappij Antwerpen Mobiel, now Lantis) launched in June 2020 a concession for the operation of a regional bike-sharing system with (electric) bicycles across the Antwerp and Waasland transport regions — a 10-year contract for 1,500 e-bikes plus 1,700 regular bikes in Antwerp and 150 + 350 in Waasland, awarded under a negotiated procedure with prior publication on the basis of the Belgian concessions act of 17 June 2016. Fourteen applications, nine selected, four offers, three BAFOs. Award criteria: price (30 points) and plan of approach (70 points), the latter split into three sub-criteria: quality of service and bicycles (35), tariff model (25) and timing and rollout (10). Final result of 1 April 2021: Donkey Republic 79.57 %, Marfina (the Spanish applicant) 69 %, Blue Mobility 37 %. The authority awarded the concession to Donkey Republic on 16 April 2021. Marfina filed an extreme-urgency suspension on 4 May. Before the hearing of 25 May, it challenged a long list of minus points. For the first sub-criterion ('Quality of service and bicycles') Marfina was rated 14/35 ('mediocre') and Donkey Republic 28/35 ('very good'). Marfina attacked each minus point: the specification permitted a rear-wheel motor next to the preferred mid-drive; the 'coaster brake' mentioned in its BAFO was, it claimed, a typo (the test bike had a conventional brake system); its 12-litre basket could carry larger luggage; its maintenance app was only available in French and English — Lantis should simply have requested a Dutch version. The Council brushes each one aside: 'It is the bidder who is responsible for the careful drafting and submission of his offer. The contracting authority cannot reasonably be blamed for incorrect specifications in the BAFO.' A test bike and photos cannot override what is written in black and white in the BAFO. For the second sub-criterion ('Tariff model') Marfina scored 15/25 ('good') and Donkey Republic 20/25 ('very good') — even though Marfina objectively offered the cheapest annual subscription, the cheapest 10-trip card and the best integration with MaaS providers. Marfina found a 'good' rating incomprehensible: how can someone with a less attractive tariff get 5 points more? The Council answers that 'good' is not a ranking but an ordinal grade based on all sub-aspects: flexibility (Donkey Republic offers week, month, quarter and year subscriptions, Marfina only week and year), target-group analysis, robustness of the financial plan (Marfina counts on advertising income without concrete contracts) and the absence of a benchmark all weigh in. The 'cheapest tariff' is no free pass. Result: the single ground is not serious — extreme-urgency suspension dismissed, Marfina ordered to pay 700 EUR procedural costs to Lantis and 150 EUR roll fee to Donkey Republic.
Why does this matter?
On a concession or service contract where price weighs only 30 out of 100, you do not win on the lowest tariff. The difference between 'good' and 'very good' on an ordinal scale is no marginal nuance: in this case it is 5 points, and cumulatively across several sub-criteria it is enough to lose the contract. The contracting authority is allowed to stack minus points and is under no duty to read your offer charitably. A test bike, a photo, an 'obvious typo' will not override what is in your BAFO. And a request to lift a minus point at the Council of State has almost no chance of succeeding: the legality review stops at a 'sufficiently externalised and weighty motivation'.
The lesson
When you bid for a contract where the qualitative weight is 60 % or more, treat every sentence in your BAFO as final. Avoid generic descriptions of partners ('recruitment of staff through Kunnig'), state concretely which tasks they perform and what experience they bring. Mention explicitly what the authority is looking for — if 'green electricity' is in the criteria, write that into your offer. And does your BAFO contain a typo? Send a formal correction during the regularisation phase if needed — waiting for the Council-of-State hearing does not work.
Ask yourself
When you bid for a contract where the plan of approach weighs more than 50 %, run this test: read through your BAFO and mark every minus point a contracting authority could note as 'limited', 'vague', 'insufficiently developed' or 'not explicitly mentioned'. Hold that list against the award criteria. More than four items? Rework your BAFO — every one of them can cost you 7 to 14 points on an ordinal scale.
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 →