Two equal scores of 90/100, another 'concrete case' to break the tie — and the Council annuls: that's adding a new award criterion
The Council of State annuls the award to Luxtax for transporting the National Orchestra's instruments, because the contracting authority — faced with two tied scores of 90/100 — did not follow the procedure of article 101 §3 of the Placement Decree (request for improvement from the two tied bidders) but instead asked all four bidders for a price on a new monthly schedule and used that to build a second comparison table, which amounts to adding an award criterion during the procedure.
What happened?
The National Orchestra of Belgium tendered a four-year service contract for ground transportation of musical instruments, estimated at 160,000 euros. Six award criteria totalling 100 points: the total of three example offers (25), staff hourly rate (25), work plan (15), team structure and flexibility (15), availability (10), and related services such as piano and organ moving (10). Four offers. The initial evaluation on 22 January 2014: Luxtax and Demeu-Debrye tied at 90/100; Actimovers 76.5; Pierson 53.5. When offers are equal, article 101 §3 of the Placement Decree requires that the authority ask the tied bidders for improvement proposals, followed by a draw if still equal. Instead, on 30 January 2014, the ONB sent a letter 'additional information' to all four bidders asking for a price on a detailed monthly schedule. The new prices: Luxtax 11,797 euros, Actimovers 15,548, Demeu-Debrye 16,570, Pierson 30,227. Luxtax was awarded the contract. After language objections, the ONB replaced its original decision with bilingual decisions on 14 July 2014. Demeu-Debrye sought annulment. The Council holds: a 'replacing' decision is a new appealable act. On the substance, the Council finds that the authority did not apply article 101 §3 properly — it did not limit its question to the two tied bidders, did not use the term 'improvement', and did not inform the bidders that two offers were tied. Nor did the authority use the responses to re-evaluate all four offers on the first criterion: it built a separate second comparison table used only to break the tie between Luxtax and Demeu-Debrye. That is adding an award criterion during the procedure, in violation of transparency and equality. Award decision annulled; procedural indemnity of 700 euros plus 200 euros other costs charged to the ONB.
Why does this matter?
Tied scores after evaluation are not as rare as they seem — especially in smaller contracts with quantitative criteria. The lesson: article 101 §3 of the Placement Decree is not a flexible suggestion, it is a mandatory framework. The contracting authority may not improvise a middle path — no new comparison exercise, no extra concrete case, no additional pricing that in reality carries a second award decision. For authorities: if your scoring table puts two offers at exactly the same score, decide at that moment explicitly whether you apply article 101 §3 (improvement proposals from the two; draw if still tied) or some other legally founded mechanism — and motivate that choice. For bidders who receive an 'additional information' letter after opening: read carefully whether the authority speaks of an 'improvement to the offer' (article 101 §3) or of something else. Terminology has procedural consequences.
The lesson
Have you found that two offers received exactly the same total score after evaluation? Then apply article 101 §3 of the Placement Decree: invite only the two tied bidders to submit an improvement proposal, and use the term 'improvement' (or 'amélioration') explicitly in your written request. Do not ask for a price on a new concrete case — that is adding an award criterion during the procedure and will be annulled by the Council as a breach of transparency.
Ask yourself
Does the authority send an 'additional information' or 'informations complémentaires' letter after the opening session? Ask in writing whether this is an application of article 101 §3 of the Placement Decree (improvement proposal in case of tied offers) and whether you are one of the two tied bidders. The answer determines both your strategy and your appeal options if you lose.
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 →