Didn't reach the minimum score? Then your tender isn't 'irregular' — it's just not good enough, and that's a different story
The Council of State rejects the claim of a training company against NMBS, because the company scored below the required 70% on both quality sub-criteria and then incorrectly argued that this constituted an irregularity assessment — when it was in fact a substantive evaluation against the award criteria.
What happened?
NMBS launched a framework agreement for training on customer orientation and aggression management for its staff. The simplified negotiated procedure with prior call for competition attracted fifteen bidders. Award criteria were quality (60%) and price (40%). The quality criterion had two sub-components: pedagogical approach (40 points) and team skills and relevant experience (20 points). The specifications explicitly stated that bidders scoring below 70% on one or more components would automatically be excluded from further participation and would not be considered for price evaluation. BV P. scored 24 out of 40 for the first sub-criterion (pedagogical approach) and 12 out of 20 for the second (team skills). That is 60% on each — well below the 70% threshold. NMBS awarded the contract to other parties. In the notification to BV P., NMBS used unfortunate wording: it mentioned the exclusion under the heading 'regularity of tenders' and wrote that the tender 'was declared irregular based on the award criteria.' BV P. seized on this wording and argued that no proper irregularity assessment had been conducted under Article 74 of the Royal Decree of 18 June 2017 (special sectors). Its reasoning: if my tender was declared irregular, there should have been a formal irregularity assessment, and I should have had the chance to regularise. The Council of State saw through this. The actual award decision — not the notification — shows that NMBS did examine the regularity of all tenders and found no irregularities. BV P.'s tender was then substantively assessed against the award criteria, and only during that assessment did it emerge that it failed to reach the minimum score. That is not an irregularity in the legal sense: it is a tender that fails to meet the quality threshold. The defective categorisation in the notification — under 'regularity' instead of 'award criteria' — does not affect the legality of the decision itself, especially since BV P. clearly demonstrates in its own application that it knows exactly why it was excluded. On the substantive minus points, the Council was brief. The finding that BV P.'s approach 'tends too much towards pastoral care' (individual conversations during and after class) was adequately motivated, especially when read together with the other finding that CVs focused more on coaching than training. The criticism that the 'embedding' aspect was insufficiently developed also failed: BV P. referred 'in globo' to its document without specifying which passages supported its position, and it is not for the Council of State to go searching. Even if the criticism of the second sub-criterion succeeded, BV P. would still fall below the threshold on the first (24/40 versus the required 28/40), so the ground could not succeed in any event. The claim was rejected.
Why does this matter?
This ruling distinguishes between two mechanisms that are frequently confused in practice: a tender that is irregular (and must be excluded after a regularity check) and a tender that fails a minimum score threshold on the award criteria (and is excluded after substantive assessment). These are two different legal mechanisms with different consequences. A defective notification that presents one as the other does not make the decision unlawful — but it can create avoidable confusion.
The lesson
Does your tender score below the minimum threshold? Understand that this is not a matter of regularity. You cannot argue that no regularity check took place or that you should have been given the chance to regularise. The threshold is a substantive selection mechanism, not a formal test. And if you want to challenge minus points: don't refer 'in globo' to your tender. Specify which passages support your position.
Ask yourself
Do you use a minimum score as a threshold in your award criteria? Make sure your notification uses the correct framework. Don't present the exclusion under the heading 'regularity' when it actually concerns an assessment against the award criteria. The distinction is legally relevant and incorrect wording invites unnecessary litigation.
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 →