The specification asked for a birthday menu, the bid promised 'a culinary attention': one point less, contract lost
The Council of State rejects Compass Group's suspension request against OCMW Tervuren's award of lot 1 (hot meals) to ISS — at a difference of only 1.10 point between the two offers, small substantive deviations in the bid wording (a 'culinary attention' instead of the birthday menu required by the specifications, a thin treatment of ethnic diversity) fully justify why Compass loses two points on the quality criterion.
What happened?
OCMW Tervuren launched a tender for the preparation and delivery of hot meals to its residential care centre Zoniën, day care centre De Den, a crèche and primary schools — three lots, estimated value EUR 2,615,000 excl. VAT, negotiated procedure with publication, classified as category B 17 hotel and restaurant services. Only two firms bid: ISS and Compass Group Belgilux. Both received clarification requests, and on 18 March 2016 the OCMW asked for a Best And Final Offer for lot 2 only. Compass submitted a BAFO for lot 2 with the express condition that the offered prices 'only apply if the various lots are awarded together'. On 24 March OCMW awarded lot 1 to ISS and lot 2 to Compass. On 31 March it withdrew that decision (the criterion 'innovativeness' had been omitted from the report) and re-awarded the same allocation with an updated report. Final total scores on lot 1: ISS 89.75 — Compass 88.65 (a difference of just 1.10 points out of 100). Compass filed an extreme-urgency suspension against the lot 1 award, raising three pleas. First plea: the specifications provided BAFO as a general rule, the OCMW asked for one only for lot 2, and the improvement proposal (lower prices upon grouped award) was ignored. The Council rejects: this is a B 17 service, not subject to art. 107 of the RD of 15 July 2011; the specifications contain no absolute BAFO obligation; and Compass itself made its improvement proposal conditional on the award of all three lots — a condition that was not met. Second plea: sub-sub-criteria and weightings had not been disclosed in advance. The Council: for B 17 services there is no formal weighting obligation, the assessment elements used in the report were already clear from the criteria description, and the cross-marks methodology (only positives counted) actually favoured Compass — it was the only bidder that also received minus and double-minus marks, which were not counted in the final score. Third plea — and this is where the practical lesson lies — focused on three concrete details. One point less for menu planning because ISS genuinely addressed ethnic differences (Mediterranean cuisine, regional habits, activity level) while Compass referred only to personal preferences and religious reasons. One point less for animation because the specifications expressly required 'a birthday menu of choice for every resident in the week of his/her birthday, including an enhanced starter, soup, main course and festive dessert'. Compass wrote in its bid only: 'on request we will provide an extra culinary attention, e.g. a starter or a festive, adapted dessert' plus a birthday card. Compass argued: 'but we signed the specifications, so we will deliver what they require'. The Council rejects this: from the standard clause by which a bidder commits to perform 'in accordance with the conditions and provisions of the specifications' it cannot be inferred that Compass promised a full birthday menu, when its bid itself expressly mentions only a culinary attention. ISS, on the other hand, expressly referred to a birthday menu in the week of the resident's birthday. And the equal 5/10 for 'innovativeness' was extensively motivated: the report analysed item by item and found that everything Compass called innovative was also present elsewhere in the ISS bid. Suspension request rejected. Compass pays EUR 200 court fee and EUR 700 procedural indemnity.
Why does this matter?
Bid writers sometimes think: 'the specifications ask for X, so as long as I sign that I will comply with the specifications, I am covered'. This judgment refutes that. The contracting authority reads your bid literally. If your bid text promises less than the specifications require — a 'culinary attention' instead of a 'birthday menu with starter, soup, main course and dessert' — you create a factual difference on which points can be deducted. And in a negotiated procedure where score differences are small (here 1.10 point out of 100), one such detail costs you the contract. At the same time, the judgment sends an important signal to anyone challenging an award: for B 17 services the contracting authority enjoys far more flexibility than for ordinary services — it is not required to ask for BAFO on all lots, not required to weight all sub-sub-criteria in advance, and can choose its own scoring method. The classic 'transparency and predictability' complaints that sometimes succeed in regular procedures have much less traction here. And: phrase your own improvement proposal unconditionally, or with a condition you can realistically meet — a discount valid only 'if all three lots are awarded' is a dead letter as soon as one lot goes to the competitor.
The lesson
Read your own bid alongside the specifications as if a juror would. For every specification requirement that is quantifiable or enumerable — a four-course birthday menu, X daily meals, Y references, a college of two — write expressly and verbatim that you will deliver it. Never write 'we will provide an attention' when the spec says 'menu', 'we take dietary needs into account' when the spec asks for 'attention to ethnic differences', or 'we have a SPOC' when the spec asks for concrete innovation. The contracting authority is allowed (and required) to compare your bid with the competitor's, and what they do not explicitly read in your text costs you points — even if you are 'in principle' bound by the specifications. And if you submit an improvement proposal or discount in a BAFO: keep the condition realistic, not 'only if all lots are awarded' when you have never won three out of three.
Ask yourself
Walk through your latest bid alongside the specifications. For every required deliverable: is it in your text verbatim, or have you used a vaguer or weaker phrase? For example: spec asks for 'a four-course festive menu' — does your bid say 'festive menu (four courses: starter, soup, main course, festive dessert)' or 'a culinary extra'? Strengthen or strike out every deviation. And if you offer a discount under a condition, ask yourself: 'is this condition realistically achievable, or am I making my offer effectively worthless?'.
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 →