Rejection of suspension request for bpost shuttle services — margin of discretion in quality assessment respected, no obligation to negotiate in special sectors, valid CEO delegation chain
The Council of State rejects the extreme urgency suspension request by BV Transport & Garage Bas against bpost's award of a shuttle services contract (Brussels personnel transport) to Eurobussing Brussels, because none of the four pleas is serious: the qualitative assessment falls within the margin of discretion, the specifications expressly permitted awarding without negotiation in this special sector procedure, exclusion grounds were verified before the award, and the award decision was taken through a valid delegation chain from the board to the CEO and subdelegation to the procurement team.
What happened?
Bpost NV tendered through a negotiated procedure with prior call for competition in the special sectors a services contract for shuttle services transporting bpost personnel between Brussels train stations (North/South) and storage, distribution and mail sorting centres. Six companies applied, four were selected, and three submitted offers. Award criteria were Price (60 points) and Quality (40 points: Quality commitment 25 points + Business Continuity Plan 15 points). The Quality commitment sub-criterion listed non-exhaustive evaluation elements (vehicles, dedicated team, complaint handling, helpdesk/dispatch, timing, supplementary services, anticipating problems), expressly stated not to be sub-sub-criteria. The specifications also expressly reserved the right to award without negotiation. The award report scored Eurobussing Brussels 86.09 (57.09 price + 20 quality + 9 BCP) versus TGBas 79 (60 price + 10 quality + 9 BCP). The difference lay in quality: Eurobussing was rated 'very good' (80%) for its sustainable fleet with maintenance schedules, 24/7 helpdesk, track-and-trace on all vehicles, in-house training, structured complaint system with SLA, and safety certifications. TGBas was rated 'fair' (40%) for a fleet with 37% non-LEZ-compliant vehicles, no track-and-trace, no structured complaint system, no training programme, no safety certifications, and no SLA information. Four pleas were raised, all rejected. First plea (unequal quality evaluation): the Council found the evaluation elements are not sub-sub-criteria requiring separate motivation per element. The absent mention of certain elements is explained by there being no particular positive or negative assessment. The differences between a professional helpdesk with track-and-trace and a mobile number with limited app justify different scores. Not serious. Second plea (failure to negotiate): Article 120 does not require actual negotiations; the specifications expressly reserved the right to award on initial offers, especially in special sectors. Not serious. Third plea (exclusion grounds not verified): the administrative file contains selection-phase verification (October 2023) and updated attestations (February-March 2024) before the award. The duty to state reasons does not require reproducing this in extenso. Not serious. Fourth plea (incompetent signatories): the board delegated to the CEO on 30 June 2017 (published in the Belgian Official Gazette), and the CEO subdelegated to the procurement team on 28 November 2023. The statutes expressly allow subdelegation. Not serious. All pleas rejected.
Why does this matter?
This ruling provides four lessons across different aspects of public procurement in the special sectors. First: non-exhaustive evaluation elements listed under a sub-criterion are not sub-sub-criteria and do not require separate motivation per element. Second: in special sectors, there is no obligation to actually negotiate, especially when the specifications expressly reserve the right to award without negotiation. Third: the verification of exclusion grounds must be evident from the administrative file but need not be reproduced in extenso in the award decision. Fourth: a delegation chain from board to CEO (published) with further subdelegation to procurement is valid when permitted by law and statutes.
The lesson
Four practical lessons. (1) When listing evaluation elements as a non-exhaustive list under a sub-criterion, make clear they are not sub-sub-criteria — this preserves your margin of discretion and limits the motivation burden per element. (2) When using a negotiated procedure, expressly reserve the right to award on initial offers — this warns tenderers to submit their best offer immediately and protects against pleas based on failure to negotiate. (3) When verifying exclusion grounds, update attestation checks before the award and keep all documents in the administrative file. (4) For delegation of powers, ensure a complete chain from board through CEO to procurement team, and keep all subdelegation decisions in the administrative file.
Ask yourself
Have I correctly qualified my evaluation elements as a non-exhaustive list or as sub-sub-criteria — and is my motivation consistent with that qualification? Have I expressly reserved the right to award without negotiation in my specifications? Have I updated the exclusion grounds verification before the award and kept the supporting documents in the administrative file? Can I demonstrate the delegation chain from the board to the signatories of the award decision from the administrative file?
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 →