'The prices are confidential' is not a valid reason to redact them from an award decision
The Council of State suspends the award to Witteveen+Bos of an ecological restoration contract, because the Flemish Region had redacted both the bid prices and the score per award criterion from the award report it sent — leaving only total scores — and because handing the unredacted version over later does not cure that lack of formal motivation.
What happened?
The Flemish Agency for Nature and Forests advertised a service contract for 'ecological restoration and connection of the Flemish Nature Reserve Teut and Tenhaagdoornheide in Houthalen-Helchteren and Zonhoven'. The contract was estimated at €90,750 incl. VAT and awarded under the negotiated procedure without prior publication based on article 26 § 1 1° a) of the 2006 Public Procurement Act — applicable to single-stage contracts under €207,000. Two bidders submitted offers: Arcadis Belgium and Witteveen+Bos Belgium. Both were selected and found regular. The award criteria were 'methodology' (with four sub-criteria) and 'price'. On 11 December 2015 an award report was drawn up: Arcadis scored 77/100, Witteveen+Bos 86.82/100. The Agency followed the proposal and awarded the contract to Witteveen+Bos. On 28 January 2016 the contracting authority sent Arcadis a registered letter stating that its offer 'was not chosen', with a note that the reasoned award decision could be requested within 30 days under article 29 § 2 of the law of 17 June 2013. The decision itself was not attached. Arcadis requested it on 1 February 2016. On 15 February 2016 the Agency sent the 'reasoned award report' with this remarkable cover note: 'Without mention of the bid prices, because price is not the sole award criterion in a contract awarded by competitive offer.' On inspection, not only the bid prices had been redacted — the score per award criterion was redacted too. Only the totals 77 and 86.82 remained. On 29 February 2016 Arcadis asked for an unredacted version. The next day — 1 March 2016 — Arcadis filed an extreme-urgency action. Two days later, on 3 March 2016, an officer of the Flemish Region wrote to the Council: 'In my view, this action has lost its purpose — we have meanwhile sent the full award report to Arcadis.' Chamber President Dierk Verbiest first ruled on time-bar: the 15-day limit only starts to run from notification of the reasoned decision itself — not from the bare letter of 28 January 2016 stating that a decision had been taken. The action filed on 1 March 2016 was therefore in time. On the merits, the Council was sharp. The duty to give reasons under the law of 29 July 1991 requires a 'pertinent' and 'sustaining' motivation: pertinent means the reasons must clearly relate to the decision; sustaining means they must support it. Without the bid prices, Arcadis could not even check whether the negotiated procedure was correctly used — article 26 § 1 1° a) does not depend on the estimate but on the 'expenditure to be approved', which is the awarded price itself. Without the price and score per criterion, Arcadis could not work out why Witteveen+Bos was chosen and could therefore not assess whether an extreme-urgency action or annulment would be worthwhile. That is precisely the rationale of the formal duty to give reasons. The argument that the Agency had now — after the action was filed — sent the full report did not save the case. The point of the duty to give reasons is that the unsuccessful bidder has the reasons before the 15-day window opens. By initially redacting prices and scores, the Agency forced Arcadis to draft its grounds blind, depriving it of a statutory safeguard. The plea was held serious. The Council ordered extreme-urgency suspension of the award decision. Costs were reserved for the further proceedings.
Why does this matter?
For contracting authorities, this is a textbook example of what not to do when notifying an unsuccessful bidder. The idea that you can keep prices or per-criterion scores 'confidential' because price is not the only criterion is a red herring — confidentiality of price data may matter for public extracts or freedom-of-information replies, not in the motivation owed to the bidder whose offer was rejected. The bidder needs everything required to judge whether to challenge the decision. For bid managers reading their losers' letter: a report that omits all prices and per-criterion scores is itself a serious procedural defect. You can file an extreme-urgency action on the defect alone — even before you know the substantive grounds for rejection. Bonus: the 15-day limit only starts running from the moment you have the reasoned decision in hand, not from the first 'you were not chosen' letter.
The lesson
As a contracting authority: the reasoned award decision must include the bid prices of all ranked bidders and the score per award criterion — not just totals. 'Price is not the sole criterion' is no statutory exemption. As a bid manager: if you receive an award report without prices or without score detail, file an extreme-urgency action within 15 days of the truly reasoned notification (not the first 'you were not chosen' letter), with the motivation defect as your first plea. Sending the unredacted report afterwards does not cure the defect.
Ask yourself
Open the most recent 'reasoned award decision' you sent or received. Does it contain: (1) the bid price of every ranked bidder, (2) the score per award criterion for every bidder — not just totals, (3) for negotiated procedures without prior publication under article 26 § 1 1° a): the actual expenditure to be approved (not just the estimate) so the €207,000 threshold is verifiable? If any of those three is missing, the decision is exposed to suspension.
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 →