No scoring method in the specifications, yet no suspension: a bidder who misses second place by 0.21 points must bring more than doubt
The Council of State dismisses the application of BV M. against the award of a Flemish framework agreement for assessment and development centres, because a scoring method need not be set out in the specifications but may follow from the award criteria themselves, and because the applicant offered no more than general misgivings about its scores, despite trailing the second selected bidder by only 0.21 points.
What happened?
The Flemish Public Service Agency (Agentschap Overheidspersoneel) of the Flemish Community put out to open tender a framework agreement ‘to support the inflow, internal mobility and outflow of Flemish government staff: assessment and development centres’. The heaviest award criterion was ‘quality of approach and service’ (60%), split into four sub-criteria of 15% each: a selection programme based on sample cases, a cooperation model of at most five pages, an overview of the test instruments to be used and their scientific value, and a diversity policy with SMART objectives. For each sub-criterion the specifications listed ‘non-exhaustive aspects’, but no express method for awarding points — something the Flemish government acknowledged in its brief. Seven bidders submitted tenders. On 23 July 2026 the agency awarded the framework agreement to the two highest-ranked bidders, including NV P. BV M. finished just behind, 0.21 points short of second place, and on 10 August 2026 applied for suspension under extreme urgency. NV P. intervened. In a single plea BV M. raised three complaints. First, there was no scoring method for the quality criterion, or at least none fixed before the tenders were opened. Chamber president Geert Debersaques held that the method need not appear in the procurement documents: it may be implicit in the description of the criteria themselves. The award report showed a detailed descriptive evaluation per sub-criterion, with strengths and points of attention translated into scores. The fact that the scores were close together did not prove that there was no method. For the claim that the method was only fixed after opening, the applicant produced no concrete evidence at all. Second, the written assessment allegedly did not make it possible to understand how the scores were arrived at. BV M. cited one example, quoting passages from its own tender to show that the evaluation was ‘too hasty’, but made no comparison with the assessment of the other tenders; the narrow margin of 0.21 points, according to the Council, showed at most its interest, not any illegality. Third, the agency had allegedly read its tender carelessly, but that too remained an assertion without any beginning of proof. In passing, the Council also noted that BV M. had asked for its tender to be kept entirely confidential, while itself quoting passages from it in its application; for those passages it had therefore lifted confidentiality itself, as it acknowledged at the hearing. The plea was not serious. The Council admitted the intervention and dismissed the application. BV M. bears the court fee of 200 euros, the contribution of 26 euros and procedural costs of 770 euros payable to the Flemish Community; NV P. bears its own court fee of 150 euros.
Why does this matter?
The judgment makes two points clear. On the law: a contracting authority is not required to include the scoring method for a qualitative criterion in the specifications. A well-developed description of sub-criteria and points of attention can suffice, provided the award report shows that the tenders were systematically assessed against those elements. That it would be more transparent to publish the method in advance is, in the Council’s words, ‘mere expediency criticism’. On procedure: whoever challenges an award bears the burden of proof and must be specific. Casting doubt on the existence of a method, pointing to closely bunched scores or quoting one passage from one’s own tender is not enough. The Council states expressly that in urgent proceedings it will not ‘redo the applicant’s work’. Precisely because the margin here was so small — 0.21 points — the judgment is a stark reminder that a narrow defeat is not in itself an argument. What counts is comparative criticism: why did my tender score lower than the competitor’s on the same element, when the written assessment says otherwise?
The lesson
Bidders: you will not win an application against a quality assessment with general doubts. Put your own assessment next to that of the selected bidders, sub-criterion by sub-criterion, and show concretely where the score does not match the written reasoning or where the authority relied on incorrect facts. Keep your criticism within the application rather than adding new criteria at the hearing: that comes too late. And if you want your tender kept confidential, do not quote from it yourself in your application. Contracting authorities: you need not include a scoring grid in the specifications, but then the award report must do the work. Describe strengths and points of attention per sub-criterion, let the score follow logically from them and make sure the comparison between tenders is readable. A clear award report was the reason this award stood.
Ask yourself
As a bidder: can you point out, per sub-criterion, where your score is out of proportion to the written assessment compared with the selected bidders? Do you have concrete indications that the scoring method was only fixed after the tenders were opened, or is it a suspicion? Have you included all your complaints, for all contested criteria, in the application itself? Are you quoting in your application from documents for which you are also requesting confidentiality? As an authority: could an outsider tell from your award report how the descriptive evaluation translates into the points awarded?
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 →