VRT stand-building suspended: whoever awards on a price simulation must be able to explain it
The VRT awarded the ‘Media 1217 – Stand-building’ framework agreement to Trimex, but because the decisive award criterion ‘rates and volume discount’ rested on an unexplained price simulation that left the rejected bidder Total Concept Expo unable even to understand its own score, the Council of State suspended that award under extreme urgency.
What happened?
The VRT (the Flemish public broadcaster) launched a restricted call for tenders for supplies entitled ‘Media 1217 – Stand-building’: the construction of indoor and outdoor stands for events, where suppliers sometimes also had to contribute creatively. The award led to a framework agreement with a single contractor, and the contract was treated as a price-list contract — only the unit prices were fixed. Six undertakings applied; three were selected and invited to tender: Fast Forward Events, Total Concept Expo and Trimex. By decision of 17 May 2013 the VRT chose not Total Concept Expo but Trimex. On 3 June 2013 Total Concept Expo sought suspension under extreme urgency; the case was heard on 25 June 2013 and the judgment followed on 26 June 2013. In a second limb of its first plea, the applicant argued that the award decision was insufficiently motivated as regards the criterion ‘rates and volume discount’. The award report was unverifiable on that point: the specification said nothing about the assessment method, and it later appeared that the prices had been compared through a simulation in which the VRT itself had estimated the annual required volume of the various items. The VRT countered that this was merely the application of a mathematical formula, and that article 65/10 of the Law of 24 December 1993 prevented disclosure of confidential commercial data. The Council of State did not follow the VRT. The assessment of ‘rates and volume discount’ was not merely the lowest price divided by the price concerned times a coefficient: what was decisive was the simulation based on a ‘basket’ of annual volumes estimated by the VRT itself, which moreover decided which prices and frequencies were counted (some at frequency zero). Neither the specification nor any disclosed document explained the composition of that basket, so that the applicant could not, at first sight, even understand its own score. The confidentiality of the detailed prices did not stand in the way of this: the VRT could motivate the premises, the assumptions and even the outcomes of the simulation without disclosing the unit prices, and the applicant was in any event entitled to insight into the assessment of its own offer. The second limb of the first plea was therefore serious. Since it did not immediately follow from that serious limb that the VRT would have to award the contract to Total Concept Expo after reconsideration, the Council did refuse to suspend the implicit decision not to award to it. The Council ordered the suspension, under extreme urgency, of the decision of 17 May 2013 to award ‘Media 1217 Stand-building’ to Trimex, and dismissed the application for the rest.
Why does this matter?
In public procurement the formal duty to state reasons is no formality: it must enable the rejected bidder to understand why it lost and to judge whether an appeal is worthwhile. This judgment sets the bar concretely. Whoever makes a decisive award criterion depend on a simulation — an estimated basket of expected volumes, with self-chosen prices and frequencies — exercises a margin of appraisal far wider than filling in a formula, and must therefore explain those choices. If the specification says nothing about that method and the award report is silent too, the decision falls simply because the bidder cannot even follow its own score. Equally important is the nuance on confidentiality: commercially sensitive unit prices may remain shielded, but that is no licence to keep the entire reasoning secret — the premises, assumptions and outcomes of the simulation can be motivated without revealing a single unit price. Finally, the judgment shows the limited reach of a suspension: a serious motivation defect suspends the award to the competitor, but does not compel the authority to award to the applicant after reconsideration.
The lesson
If, as an authority, you award on the basis of a price simulation or an estimated volume basket, include the method in the specification in advance and explain in the award report the basket, the assumptions and the outcomes — enough for every bidder to reconstruct its own score. If you invoke confidentiality, still motivate the premises and results without revealing the unit prices; ‘it is confidential’ is no valid reason not to motivate at all. As a rejected bidder, your strongest lever is often not the substance of the score but its untraceability: if you cannot reconstruct your own score from the award report, you have a serious plea. But do not count on a suspension securing you the contract — it merely compels a proper reconsideration.
Ask yourself
Is the assessment method of your price criterion — including any simulation or volume basket — stated in the specification in advance, and does your award report explain the assumptions and outcomes so that every bidder can understand its own score? Do you confuse shielding confidential unit prices with omitting all reasoning? If you challenge an award, can you show that you cannot reconstruct your own score from the file? And do you realise that a suspension under extreme urgency stops the award to the competitor but does not oblige the authority to award the contract to you?
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 →