Inadequate motivation of sub-criteria is insufficient when the points gap is too large to affect the outcome
The Council of State rejects an IT training company's challenge against the award of a framework agreement for IT training services (game design, motion design, compositing VFX), holding that while some sub-criteria were inadequately motivated, the affected points were too few to bridge the gap with the threshold or the first-ranked tenderer, the criticism of trainer qualifications was unsubstantiated, and inviting only one tenderer for a price-only BAFO did not violate the equality principle since the applicant already had the lowest price.
What happened?
Bruxelles Formation, the Brussels francophone institute for vocational training, launched a direct negotiated procedure with prior publication for a framework agreement for IT training services across eleven lots. Real Reality SRL submitted an offer for lot 9 (Game Design), lot 10 (Motion Design), and lot 11 (Compositor VFX). The award criteria were quality of training provision (80 points, with sub-criteria for pedagogical approach, trainer qualifications, and programme relevance) and price (20 points). For lot 9, Real Reality's offer was declared irregular: it scored 39/80 on quality, below the required 60% threshold of 48/80. For lots 10 and 11, the offer was regular but ranked second, with gaps of 16 and 18 points respectively behind Ascent. Bruxelles Formation invited only Ascent for a price-only BAFO on lots 10 and 11. Real Reality raised four grounds. On formal motivation: the Council found certain sub-criteria inadequately motivated (lot 9: sub-criteria 1 and 6; lot 10: sub-criteria 4, 5(partial), 6; lot 11: sub-criteria 1, 3, 5(partial), 6). However, the maximum points affected were 8, 6, and 10 respectively — insufficient to reach the threshold (39+8=47<48 for lot 9) or close the gap with Ascent (16 and 18 points for lots 10-11). The ground was rejected for lack of interest. On trainer qualifications: the assessment falls within the authority's broad discretion and the applicant failed to concretely demonstrate why it was manifestly unreasonable. On evaluation methodology (Article 81): using a scoring form with comments per sub-criterion is not unlawful; the issue was depth of motivation, not the method itself. On equality (BAFO): since the BAFO concerned only price and Real Reality already had the lowest price, inviting it would have brought no advantage. All grounds failed.
Why does this matter?
This ruling clarifies three recurring principles. First, inadequate motivation of sub-criteria does not automatically lead to suspension — the Council applies a pragmatic test calculating whether the affected points could change the outcome. Second, assessing the relevance of proposed trainers' qualifications falls within the authority's broad discretion, requiring concrete evidence of manifest unreasonableness to challenge. Third, inviting only one tenderer for a BAFO does not breach equality when the BAFO concerns only price and other tenderers would gain no advantage from participation.
The lesson
Before challenging inadequate sub-criteria motivation, calculate whether the maximum affected points could bridge the gap to the threshold or to the first-ranked tenderer. If not, the Council will reject the ground for lack of interest. When challenging trainer assessments, demonstrate concretely why the evaluation was manifestly unreasonable — merely asserting qualification is insufficient. As a contracting authority, motivate each sub-criterion specifically for each tenderer to prevent challenges and strengthen legal certainty.
Ask yourself
As a tenderer in a procedure with qualitative criteria: have you calculated whether challenged sub-criteria carry enough points to change the outcome? When challenging trainer assessments, have you concretely demonstrated manifest unreasonableness? As a contracting authority: have you motivated each sub-criterion specifically per tenderer, referencing the concrete offer rather than repeating specification text?
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 →