Same points, different outcome: after the suspension, the Maaseik welfare centre could re-award to Gielen with a cleaned-up award report
After the Council of State had suspended the award of the electrical lots of Maaseik’s new care home (1,231,205.26 euros) because the authority had assessed technical merit using thirteen sub-elements and weightings never announced in the tender documents, the authority withdrew that decision and, on the basis of a revised award report — with exactly the same scores — re-awarded to Gielen; CKS’s second extreme-urgency application fails, because the withdrawal erased the first decision and the new report does rest on the tender criteria.
What happened?
The public welfare centre (OCMW) of Maaseik tendered, by open call for tenders, the construction of a new residential care centre with 64 ROB and 56 RVT beds, three short-stay units, a day-care centre and a service desk. Lots 4 and 5 — the medium-voltage cabin and the electrical installation, together estimated at 1,398,817.30 euros — attracted five bidders. In the award report of 14 February 2012, Elektriciteitswerken Gielen scored 96.26 points and CKS 94.93: CKS had the best price (40/40), but Gielen scored higher on technical merit (53.30 versus 49.93 out of 55). On 21 February 2012 the OCMW awarded to Gielen for 1,231,205.26 euros excluding VAT. CKS went to the Council of State and obtained a suspension by judgment no. 218.827 of 5 April 2012: the OCMW had assessed technical merit using thirteen sub-elements — from lighting fixtures (20 points) to lightning protection (1 point) — with a weighting that appeared nowhere in the tender documents and had been fixed only after the opening of tenders. The OCMW reacted quickly: on 13 April 2012 a revised award report expressly tied the assessment to the criteria explained in the tender documents (technical, aesthetic and functional quality and ease of maintenance) and listed the deviations per tender — ten negative points for CKS, four for Gielen. The scores remained exactly the same. On 24 April 2012 the OCMW withdrew the suspended decision and, by separate decision, re-awarded to Gielen. On 21 May 2012 CKS again sought suspension under extreme urgency. This time it failed. The Council held that the withdrawal means the first award decision is deemed never to have existed: its reasons cannot be read implicitly into the new decision, so the criticism of the old weighting lacks a factual basis. The new report itself showed no sub-criterion or weighting fixed after the fact, and, citing the Court of Justice’s Evropaïki Dynamiki judgment (C-252/10 P), the Council repeated that further specifying announced award criteria is not absolutely prohibited; nor is there any obligation to disclose the assessment method in advance. That every bidder received exactly the same points as before struck the Council as ‘curious’, but not unlawful in itself — the OCMW explained at the hearing that it stood by its first substantive assessment. CKS’s technical complaints (sockets offered only in white where the documents required a colour choice, a surface-mounted instead of recessed light fitting, fixtures not directly linkable, emergency lighting at 380 instead of 450 lumens) revealed no assessment errors either. The application and the requested interim measures were dismissed, with 175 euros in costs against CKS.
Why does this matter?
The judgment shows how a contracting authority can repair a suspended award without changing the outcome — and where the line runs. The legal figure carrying everything is the retroactive effect of withdrawal: the first decision is deemed never to have existed, so whoever challenges the new decision must aim at that document. The temptation for the unsuccessful bidder is to infer from the identical scores that the old, unlawful weighting was simply carried over; the Council calls that result curious, but accepts the explanation that the assessors substantively stood by their first evaluation. As long as the new report itself rests on the tender criteria, it stands. The judgment also confirms two settled lines that often surprise bidders: sub-criteria that merely specify the announced criteria are permitted (Evropaïki Dynamiki), and there is no general obligation to disclose the assessment method in advance. Finally, the threshold discussion shows that lots are added together for European publication: the 1.4-million-euro electrical lots followed the regime of the full construction project above 4,845,000 euros. Whoever looks only at their own lot underestimates which rules apply.
The lesson
For contracting authorities this is the manual after a suspension judgment: formally withdraw the suspended decision, rework the award report so the assessment demonstrably rests on the tender criteria, and take a new, self-standing award decision. The same outcome is not a problem, provided the new report carries it independently — though identical scoring remains a red flag best countered with visibly fresh reasoning per tender. For bidders: a won suspension is not a won contract. Expect the authority to re-award, and do not build your second case on the defects of the withdrawn decision — legally it no longer exists. Look critically at your own tender too: the ten negative remarks against CKS (down to the sockets offered only in white) ultimately weighed more than any procedural complaint. And make your technical data sheets deliver exactly what the documents demand — the Council reckons only with what accompanies the tender, not with what is added later.
Ask yourself
Does your award report rest visibly and exclusively on the criteria and explanations in the tender documents, including when you reassess after a suspension? Can you justify why a reassessment produces the same scores, with reasoning that stands on its own? Do you know, as a bidder, that the withdrawal of an award decision erases it retroactively, so that complaints against the old report lack a factual basis? Do your technical sheets meet every requirement literally (protection rating, luminous flux, recessed mounting, colour choice) — and is everything you invoke actually attached to your tender? And have you added the lots together to know whether the European threshold is reached?
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 →