Flame-retardant police jerseys: the Council upholds the authority’s point deductions
Jomex, ranked second, challenged the federal police’s award of a multi-year supply contract for flame-retardant public-order jerseys to the firm Cerbul, complaining that the authority had manipulated the quality scores, but the Council of State held that the structured assessment method had been reasonably applied and dismissed the action.
What happened?
The Belgian State (Minister of the Interior) launched an open call for tenders for an ‘open multi-year agreement’ to purchase jerseys for the maintenance and restoration of public order (‘HHOO’) for the integrated police, under specification no. DGS/DSA 2011 R3 233. The jerseys form part of the specific operational equipment used in public-order operations, where there is a risk of fire and heat, and the contract was split into two items: a standard size and a made-to-measure version. The specification set award criteria weighted 35% for price, 22% for comfort and ease of use, 18% for the quality of the base materials, 15% for the quality of the making-up, 7% for the quality of the logo and markings and 3% for delivery times. For the quality criteria a detailed method applied: each offer started at 100 points, with points added or deducted according to deviations from the technical specifications (from +5 for a noticeable improvement to -60 for an unacceptable deviation). An offer that failed to reach half the points on a first-rank quality criterion was not assessed further. Five firms tendered: Damart Serviposte, Acertys, Cerbul, Sioen and Jomex. The offers of Damart Serviposte, Acertys and Sioen fell short of half the points on comfort, base materials or making-up and were declared irregular. Cerbul was ranked first, Jomex second, and the Director of Purchasing awarded the contract to Cerbul. Jomex sought annulment on a single plea attacking the assessment method: the colour deviation of Cerbul’s knit (delta E greater than 3) should, it argued, have led to a deduction of at least 25 points instead of 5 — after which Cerbul would have fallen below half and become irregular — and in an earlier contract using the same method Jomex itself had lost 25 points for a smaller colour deviation. Jomex gave further examples of alleged manipulation: 10 penalty points for weight although its jersey met the weight standard, too small a reward for its twice-as-high burst resistance, unequal assessment of the size table and shrinkage, and purely subjective logo assessments. The Council of State rejected this. A contracting authority has a margin of appraisal, which a method fixed in advance precisely renders more transparent and objective; the court only checks whether that margin was exercised reasonably. The five-point deduction for colour was plausible because the colour ‘visually closely approximates what was required’, and the earlier contract — a fleece gilet from the basic kit — was not comparable to this specific operational equipment. Weight yielded no penalty ‘as such’, but the ‘heavier and warmer’ feel counted under comfort; on burst resistance Jomex actually gained two points and Cerbul lost two, contradicting its complaint. Since Jomex did not substantively rebut the detailed refutation in the auditor’s report, the Council followed those conclusions. The plea was wholly unfounded and the action dismissed; Jomex was ordered to pay 175 euros in costs.
Why does this matter?
Almost every dispute over a call-for-tenders award turns on how far the court may review the scoring. This judgment draws that line sharply: where the authority has fixed a structured assessment method with a points scale in advance, the Council of State does not check whether it would itself have awarded the same points, but only whether the choice made stays within the bounds of reasonableness. A bidder arguing that a deviation ‘really’ deserved 25 rather than 5 penalty points, or that an objective measurement should have scored better, gets nowhere as long as the authority’s reasoning is plausible. The judgment also shows the pitfall of comparisons with an earlier contract: the same method does not make two contracts comparable when the subject matter — here a specialised piece of public-order equipment versus a general garment — differs materially. And procedurally there is a hard lesson: whoever leaves the detailed refutation in the auditor’s report unanswered gives the Council little reason to depart from it.
The lesson
As an authority, it pays to structure the assessment method in advance with an explicit points scale and to give a concrete reason for each deviation (‘visually close to what was required’): that is exactly what shields your scores from challenge. As a bidder, it is not enough to argue that a deviation should have scored ‘more strictly’ or a measurement ‘more favourably’; you must show that the score given is manifestly unreasonable, and you would do well to rebut the auditor’s report point by point rather than repeat your application. If you invoke an earlier contract using the same method, first show that the subject matter is truly comparable — otherwise the argument falls away.
Ask yourself
As an authority, have you fixed your assessment method in advance with a points scale, and do you motivate each plus or minus so that a bidder can understand its own score? If you challenge a score, do you show that it exceeds the bounds of reasonableness, or do you merely express your own preference? Have you substantively answered the refutation in the auditor’s report, or do you repeat your original grievances? And if you refer to an earlier contract, is its subject matter truly comparable, or does it differ materially from this one?
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 →