In public procurement practice there is a trend towards reducing subjective elements in the evaluation process. The aim is to reduce possibilities for contract awards motivated by vested interests rather than value for money. Subjectivity is especially problematic where bid evaluation is based on quality aspects rather than lowest price or costs. Price and costs can be made subject to precise requirements for calculation. Functionality, after-sales service and other aspects of quality are on the other hand less obvious.
In litigation on tender procedures the complainants will often successfully focus on elements in the tender documentation that are vague and therefore leave too much room for discretion to the procuring entity. Other than the risk of deliberate undue contract awards to “friends of the house” there is more generally the problem that vagueness may well make it impossible to actually compare bids and thus identify the winner. Vagueness will hamper the process in two respects resulting in unequal treatment of the bids, firstly by not providing sufficient guidance for the evaluation panel and secondly by not providing sufficient information to bidders to allow them to optimize their bids.
A recent example is a decision from the Danish Public Procurement Complaints Board of 14 November 2025 [1]. The decision concerns a framework contract about coffee supply to Syddansk Universitet (university of Southern Denmark) where one of the claims made was that one of the award criteria regarding quality was too vague and thus not capable of ensuring equal treatment of bids. The case included other claims but here I will focus on the vagueness issue.
According to the tender specifications, the criterion “quality” was to be evaluated by means of a tasting-test of the types of coffee proposed in the bids. The test should be conducted as a blind test, where the test panel (university personnel)would have no knowledge of prices, product names or suppliers. The tender specifications included various practical steps for the preparation of coffee samples to ensure the integrity/ arms-length of the test.
The task of each member of the test panel was to identify the sample that best provided “the experience of a good cup of coffee”. A critical aspect is of course how members should approach the task. The tender specifications states in this respect the following:
The assessment of a good cup of coffee/good cup of tea depends on individual preference. The basis for the assessment is the individual’s taste experience, which is based on their own wishes and preferences. Some people prefer a more intense taste, while others prefer a milder one. The individual assesses how the balance is in the taste, including how sweetness, acidity and bitterness harmonize. The smell and aroma are assessed as to whether it is rich, inviting and whether this helps to improve the overall experience.
The complainant argued that the tender specifications did not clarify in more detail which parameters were given importance when awarding the points. The criterion quality was assessed based on the sub-criterions “taste” and “aroma”, which were assessed on the basis of the test persons’ “own wishes and preferences”. The criterion “quality” was thus imprecise and subjective, and it was not suitable for making an objective assessment of the quality of the coffee. In relation to the bidders it would not have been possible for them to optimize their bids as it was not possible to deduce what would be given importance when evaluating taste – would it for example be taste or aroma?
The complainant also argued that procuring entities must be able to explain to rejected bidders the reasons for choosing the winning bid. Since the panel members were merely asked to give a score (points from 0 to 10) – and not provide reflections on for example richness of aroma – then the mere difference in points would not explain the choice.
However, what mattered to the Board was that even when the test persons could assess individually what was a good cup of coffee, the tender specifications laid down what each test person should base the assessment on. The Board argued as follows:
The bidders could thus deduce that when assessing whether it was a good cup of coffee (…) emphasis would be placed on taste, aroma, whether the taste was intense or mild, the balance of the taste, including how sweetness, acidity and bitterness harmonized, and that the smell and aroma would be assessed based on whether it was rich and inviting, and whether it helped to improve the overall experience.
The bidders have thus had the opportunity to optimize their offers on the same basis in competition with the other bidders, which has been suitable for identifying the most economically advantageous offer.
The fact that the assessment basis included a subjective element, where the degree of fulfilment was assessed based on the preferences of the individual test participant, does not mean that the evaluation model was determined in violation of the principle of transparency.
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So, the subjective elements of the evaluation could according to the Board not be criticised. What mattered was that bidders could read out of the tender specifications what the panel members were supposed to focus on, namely various aspects of taste and aroma. Moreover, the Board had not found reason to criticise any of these aspects. They were in other word considered suitable for identifying the best bid.
It could be argued that the specifications include elements, which in fact neutralise each other, such as mild/intense, sweetness/bitterness and therfore provide little guldance for the bidders to design their bids. This neutralising effect is of course due to the fact that the evaluation must allow room for individual preferences of panel members. The reasons for the scoring of each member needed as mentioned not be indicated. All that was required was a score.The winning bid would be the one receiving most points as the one offering coffee which according to the panel majority is the best. However, the points would not explain to any participating bidders the exact reasons why the best coffee was in fact the best.
[1] The Board decision is available on https://klfu.naevneneshus.dk/afgoerelse/6952add5-d9a1-4c13-b5f0-9a287bc0cff9