Challenging a scoring error is pointless if you can't catch up with the winner anyway
The Council of State rejects an extreme-urgency suspension against the award of seven electric service vehicles because even a possible error in the distance calculation would not bridge the 16.59-point gap with the winning bidder.
What happened?
The City of Damme tendered the purchase of seven electric service and shared-use vehicles. Award criteria: price (80 points) and 'distance to the maintenance workshop' (20 points). Garage Devisch bv won with €219,042.92 (incl. VAT) and a final score of 99.60%. Autobedrijf Teirlinck bv came second with €278,113.03 and 83.01% — a 16.59-point gap. On distance, Devisch received 19.6 out of 20 because its workshop in Oostkamp was supposedly 12.3 km from Damme. Teirlinck protested: the actual distance was 34 to 47 km, so Devisch should only have received 15.2 or 12.6 points. Among other grounds, Teirlinck argued lack of motivation, an incorrect reference in the award decision to an older specification (which had been withdrawn after objections), and the absence of a comparison on delivery time. The Council of State rejects the application. On the distance argument, it holds that even in the scenario most favourable to Teirlinck (the chosen bidder at 47 km, hence only 12.6 points) the gap would only shrink by 7 points — insufficient to bridge the 16.59-point gap. No legal interest. The other grounds are rejected on the merits: the incorrect reference to the specification was a mere clerical error without effect on substance, the qualitative selection is separate from the award assessment, and the delivery term was a contractual performance obligation, not an award criterion.
Why does this matter?
For bid managers this is a sober reminder: a suspension application is not a chance to challenge every imperfection in an award procedure. The Council of State requires a concrete interest — if your argument, even in the most favourable scenario, cannot lead to a re-ranking, you will not get through. For contracting authorities it confirms that a mere clerical mistake (reference to the wrong specification) does not produce illegality if the substance of the decision is correct, and that the definition of an award criterion determines what you actually take into account.
The lesson
Before lodging a suspension, calculate carefully whether your argument, in the most favourable scenario, can actually bridge the points gap. If your loss margin is too large, litigation is futile — the Council of State will dismiss your standing before looking at the merits. For contracting authorities: define exactly in the specification which address counts for distance criteria (branch, workshop, head office) — this prevents later disputes.
Ask yourself
Before launching a suspension: calculate in the most favourable scenario how many points you can gain or the winner can lose, and check whether that bridges the points gap. If not, save yourself the procedural costs.
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 →