Free bikes, but no uniform unit price: the Council of State suspends the award of Leiedal’s bike-sharing concession
The winning best-and-final offer for the Intercommunale Leiedal bike-sharing concession offered the ‘supplementary network’ free of charge up to 50 electric or 100 ordinary bikes and only charged a tariff above that — not the uniform fixed unit price the specifications required for a price-list contract — and that prima facie substantial irregularity, worth a score of 15/15 against 5.54/15 for the applicant, was enough to suspend the award of 26 June 2026 under extreme urgency.
What happened?
The Intercommunale Leiedal tendered a services concession for the design, installation and operation of a back-to-many bike-sharing system in the Leiedal region, as part of the Kortrijk transport region’s demand-responsive transport scheme. The specifications distinguished a ‘basic network’ — at least 41 base locations, remunerated by a fixed annual financial contribution — from a ‘supplementary network’, for which municipalities, companies and organisations could act as ordering parties and which was expressly treated as a price-list contract, with fixed unit prices and merely indicative quantities. The award criteria were price (35), the quantitative offer for the basic network (20), the quality of the offer (35) and the communication plan (10); within the price criterion, the price for the supplementary network was assessed separately for 15 points. Four undertakings submitted offers. On 12 May 2026 they were invited to submit a BAFO by 28 May, each with its own points of attention: D.R. was asked, among other things, to clarify whether the extra city bikes in central Kortrijk belonged to the supplementary network and whether their price was zero, with the indicative remark that, besides Kuurne and Wevelgem, Menen too was interested in some twenty bikes; the applicant was merely told that the price of the supplementary offer is an important threshold for municipalities. A few hours before submission, the authority also communicated the missing sub-weighting of the criterion: 2.5 points for the start-up price of an additional location, 2.5 for the annual operating price per location, 5 for the annual price per additional electric bike and 5 for the annual price per additional non-electric bike. In its BAFO, D.R. offered two options, both entirely at its own expense: option A with 100 free non-electric bikes, option B with 50 free additional e-bikes, the choice to be made at the award stage; orders beyond those options did carry a tariff. On 26 June 2026 the board awarded the concession to D.R. On price, the applicant scored 18.65/20 for the end-user price against 14/20 for D.R., but 5.54/15 for the supplementary network price against 15/15 for D.R.; overall 76.61/100 against 83.75/100. The applicant, ranked second, sought explanations, learned on 2, 4 and 6 July 2026 that bidders offering more than 42 additional bikes free of charge received 5 out of 5 and that the price for bikes beyond that number had been disregarded, and on 13 July 2026 applied for suspension under extreme urgency. After the defence note and the administrative file had been filed, the auditorate raised the question whether the concession reached the threshold of 5,404,000 euros; no prior estimate under article 35 of the Concessions Act appeared to have been made. The Council of State refused to let that late discussion, based on confidential documents, carry weight: the applicant was entitled to rely on the express references in the specifications and the notification letter to the Concessions Act and the Remedies Act, the value of the concession is very hard to determine given the many uncertain parameters, and in case of doubt it is appropriate — as in judgment no. 240.673 of 6 February 2018 — to hold that legislation applicable rather than not. On the merits, the Council found that D.R. had not stated a uniform unit price for the annual price per additional bike but a price varying with the chosen volume: zero up to the 100th non-electric or the 50th electric bike, and the fixed BAFO tariff above that. The specifications did not permit such differentiation, nor did they provide that only the price for that limited volume would count. At the hearing the defending party could not clarify whether the options belonged to the basic or to the supplementary network. Prima facie, D.R.’s BAFO should therefore have been rejected as irregular. The single plea was serious to that extent, the Council ordered the suspension of the award decision and reserved the costs, including the procedural indemnity claimed.
Why does this matter?
Two things make this judgment useful far beyond the bike market. The first is the finding that offering something ‘for free’ is not without consequence where the specifications impose a price-list contract with fixed unit prices. A bidder who gives away a first tranche and only then charges a real price is no longer offering a unit price but a sliding scale, and that is a departure on the substantial point of the price statement. That the authority then rewarded the scale with the maximum score, while disregarding the price above the free tranche, compounds the problem: the basis for comparing the offers disappears. The second is how the Council deals with an authority that, halfway through the procedure, doubts whether its own contract falls under the legislation it invoked. Leiedal had made no prior estimate, had expressly referred in the specifications and the notification to the Concessions Act and the Remedies Act, and only after filing its note and the file tried to show by simulation that the European threshold was not met. The Council rejects that with an argument that benefits every bidder: effective legal protection requires the procedure to be sufficiently clear and knowable at the latest when the action is brought. Those who announce the applicable regime themselves cannot later walk away from it. Notably, the first auditor advised otherwise — a reminder that assessing such price constructions is not self-evident.
The lesson
If you are a bidder and want to score by giving away part of the contract, first check how the specifications structure the price. If they impose fixed unit prices and a price list, your price per unit must stay the same regardless of the quantity taken: zero up to fifty units and a real tariff above that is not a unit price but a volume discount, and risks rendering your offer substantially irregular. If you are the contracting authority, there are three concrete points. Do not value a free offer at zero when a price for the excess is also on the table — you are then comparing apples with pears, and the Council will see through it. Make sure the weighting of every (sub)criterion is in the specifications and is not sent round a few hours before the BAFO deadline. And give the information that shapes the offers — here Menen’s interest in some twenty bikes — to all bidders, not only to the one whose question happened to touch on it. If you doubt whether your contract reaches the European threshold, make the prior estimate required by article 35 of the Concessions Act; once you have invoked the Concessions Act and the Remedies Act, you cannot go back on that during the proceedings.
Ask yourself
Do your specifications allow a unit price to vary with the volume ordered, and if not: have you checked that the winning offer contains no disguised sliding scale? When assessing a free offer, did you also look at the price that applies once the free quantity is exceeded? Is the weighting of each sub-criterion in the specifications themselves, or did you only communicate it during the BAFO round? Did every bidder receive the same information about expected take-up? And as an authority: did you estimate the value of your concession before publication, as article 35 of the Concessions Act requires, so that you need not dispute afterwards which remedies regime applies?
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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 →