Explaining your own scoring formula in the response brief is too late — the award is annulled
The Council of State annuls the concession for three LED information boards in Kontich because the municipality only managed to explain what its own screen-time scoring formula meant during the proceedings — and because the 'Tmax = 16' used in the formula did not match the 15-point maximum score stated in the guidelines.
What happened?
The municipality of Kontich wants to install three digital LED information boards in its streetscape and opts for a domain concession — a sui generis procedure deliberately falling outside the public procurement rules (below the €5,186,000 threshold of Directive 2014/23/EU), but organised with respect for fair competition. Four candidates submit proposals. The second award criterion is 'screen time for the local authority' (30 points), divided into two sub-criteria of 15 points each: 'allocated screen time' and 'allocated time slots'. For allocated screen time, a mathematical formula is used: P = Tmax × Trofferte / Trmax, where Tmax stands for 'maximum points of the criterion', Trofferte for the screen time in the offer, and Trmax for the longest screen time. After scoring, four bidders are clustered very closely: 89.7 — 88.6 — 87.3 — 86.5 out of 100. Company C. ranks third. On 21 February 2022, the concession is awarded to the winner. Reviewing the scoring table, C. notices two things. One: each of the four calculations reads '16 × … / 9.6' — but the maximum score for this sub-criterion is 15 points, not 16. Two: nowhere in the table or in the contested decision is it clear whether 'Trofferte' is expressed in hours per day, as the guideline requires. Only in its response brief does the municipality explain that the figure 16 represents the 'maximum screen time per day' — an interpretation found nowhere in the award guidelines, nor in any other document of the administrative file, and not even visible in the actual bids themselves. The Council of State rules, with authority of res judicata, that the municipality has not shown that each bid's screen hours per day were actually used to apply the formula. The plea succeeds. The first contested decision — the award to the third party — is annulled. The appeal against the implicit refusal to award the concession to C. is rejected: that case-law technique is reserved for exceptional cases, and here a reassessment would not necessarily lead to awarding the concession to the applicant. The municipality is ordered to pay €200 court fee, €22 contribution and €770 procedural indemnity.
Why does this matter?
A domain concession may fall outside the formal procurement rules, but equality and the duty to state reasons remain in full force. A contracting authority organising a sui generis procedure cannot explain after the fact what its own formula means — that should have been set out in the guidelines. This case also shows the danger of narrow scoring gaps: between first (89.7) and fourth (86.5) only 3.2 points lay. A recalculation can fully reshuffle the ranking, and the Council of State refuses in such cases to pre-empt the authority's reassessment by confirming the ranking itself.
The lesson
When you include a scoring formula in your guidelines or specifications: verify that every variable and every constant matches exactly what is stated elsewhere in the document. A 'Tmax = 16' in your calculation table when the criterion is worth at most 15 points seems a minor slip — but it makes your whole reasoning opaque. And whatever is not in the guidelines cannot be filled in later through a response brief.
Ask yourself
Take your most recent specification or guideline containing a mathematical scoring formula. Is every variable precisely defined, including its unit? Do the numbers in your worked example match the criterion's maximum score? If not: rewrite before publishing.
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 →