Strict for the excluded bidder, lenient for the winner — a contracting authority cannot apply the same rule both ways at once
The Belgian Council of State suspends the award of Walloon red-light speed cameras because the Walloon Region rejected Jacops's offer over a technical detail, while simultaneously scoring the winner just above the exclusion threshold for a software demonstration 'essentially given via PowerPoint' — when the tender required a live demo on penalty of exclusion.
What happened?
The Walloon Region launched in March 2022 a purchase center for speed cameras on the Walloon road network, divided into three lots. Lot 3 concerned systems for detecting red-light violations — fixed equipment at intersections. Three bidders for lot 3. The tender contained two pivots on which this case turns. Pivot 1 — pole type (technical). Section V.3.8 of the tender required the post on which the cinemometer is mounted to be 'tilting or telescopic', enabling maintenance at ground level (between 0.8 and 1.6 metres). SA Jacops offered a 'monobloc radar': one whole in which post and cinemometer are integrated, neither tilting nor telescopic. The Walloon Region rejected Jacops as substantially irregular (art. 76 of the 2017 Royal Decree): the monobloc tower qualifies as 'pole type' and does not meet the minimum requirement. Jacops's first ground — not serious. The Council follows the Region: minimum requirements are minimum requirements. Pivot 2 — software demo (award criterion). Section I.17 provided for a 'live technical presentation of the management software' as award criterion B (10 points out of 100). Important detail: 'on penalty of exclusion of the offer, the score for this criterion must be equal to or greater than 6/10'. Score below 6 = exclusion. The winner — temporary association FlashRadar2Wal (Fabricom + Sensys Gatso Netherlands) — got 6/10. Just enough not to be excluded. What went wrong? In the 'reasoned analysis report' there is a remark from the integrated police representative(s) on the evaluation committee: 'In strict respect of the CSC, the score should be 4 for the integrated police, because the presentation is not in real time for the M3 software, which implies the elimination [of the intervening parties] for this lot.' The award decision itself acknowledges: 'the presentation is essentially carried out on PowerPoint, not in real time'. The 'partial' live presentation ran on the M3 software (Macq), but integration with the actual red-light detection system offered was 'under integration in M3 (development in progress)' — so the presentation of capabilities ultimately took place via the radar supplier's own software, 'in no way through the M3 software'. The Walloon Region brushed all this aside: the police representative's remark was 'the opinion of one committee member' that it did not have to follow, and the PowerPoint was 'sanctioned' by 4 deducted points (10 max → 6 awarded). The Council does not accept this. The ruling: 'it is not possible for the Council of State to understand the score of 6/10' when (a) the M3 software presentation was 'essentially via PowerPoint' and (b) the rest of the presentation ran on another supplier's software. In such a complex context, the duty to motivate requires 'a circumstantiated motivation'. Heart of the judgment: 'awarding a score of 6/10 just barely allows the defendant not to reject the intervening parties' offer for irregularity.' Literally 'on the wire': the contracting authority used the scoring to avoid exclusion without substantiated justification. And: 'even though her offer was declared irregular (...) the applicant has an interest in challenging the contested act insofar as it does not declare the awardee's offer irregular'. Even a rightly excluded bidder has standing to attack the fact that the winner was not excluded — if the winner should also have been excluded, the procedure must be redone. The Council distinguishes Jacops's position: Jacops's live demo was fully real-time, the software met the requirements, only communication with the red-light system could not be shown 'because Jacops does not yet have installations of the systems offered in its bid'. That is a different defect than FlashRadar2Wal's. Second ground serious. Suspension granted.
Why does this matter?
For contracting authorities this is a warning against 'grading toward desired outcome'. When an award criterion contains an exclusion threshold, the score awarded above that threshold must be substantiated with the same rigor as an exclusion below it — otherwise the impression arises that the authority calibrated the score to keep the desired winner on board. That stands out, and the Council of State scrutinizes such motivation thoroughly. For bidders: even when your own bid is rejected as irregular, you retain standing to challenge the regularity assessment of the winner. If the winner should also have been excluded, the procedure failed and must be redone — that is your opportunity. Further important detail on BAFO and demos: a software demo via PowerPoint is not a 'live presentation'. A partial live demo in which not the offered end-product software runs, but a third party's, equally does not count.
The lesson
If you combine an award criterion with an exclusion threshold ('score below X = exclusion') in a tender: build your evaluation file as if every score determination will be contested down to the unit before the Council of State. And if one of your internal evaluators (police, technical experts, controller) notes that 'in strict respect of the tender' the score should be lower — do not simply delete that remark. Document why you nevertheless score higher, with explicit numbers and reasoning. 'Margin of appreciation' exists, but does not work as an alibi for unexplained scoring decisions that land just above an exclusion threshold.
Ask yourself
If you award a score just above an exclusion threshold (6/10 when 6 is the minimum, 50% when 50% is the minimum, etc.) and an internal evaluator scored lower with motivation: have you explained in your award report, in concrete numbers and reasoning, why you score higher? Not 'opinions differ' — literally why the non-compliance the other evaluator saw does not lead to exclusion?
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 →