Two valid scoring errors in your offer count for nothing if the points gap remains too wide to close
Besix Park persuades the Council of State on two scoring errors — three wrongly deducted points on award criterion 1 and a possibly understated score on criterion 4 — but loses anyway, because even after correction 82.24 points cannot catch Apcoa's 90.
What happened?
In November 2014 the City of Vilvoorde launches a negotiated procedure with publication for a combined contract: operating on-street parking and designing, building and operating a new underground car park beneath the Grote Markt — a 15-year concession of public service and public works. Three candidates are selected: THV OPC-Vinci, Besix Park and Apcoa Parking Belgium. The dominant award criterion (60%) is the 'Compensation': the percentage of gross revenue payable to the city, with a €500,000 annual minimum. The specifications require bidders to provide 'provisionally a single percentage', allowing alternative mechanisms. After a first BAFO on 19 October 2015 the city designates Apcoa as preferred bidder on 16 November 2015 and awards on 30 November 2015. By judgment 233.371 of 30 December 2015 the Council of State suspends that award: unlike the other bidders, Apcoa had proposed a compensation mechanism with variable percentages by income threshold, and the city had not communicated this 'alternative mechanism' to all bidders. The city revokes the award on 11 January 2016, and on 18 January 2016 clarifies the specifications and orders a second BAFO round for all criteria. On 30 March 2016 it again awards to Apcoa: 94/100 vs 77.24 for Besix. Besix files an extreme-urgency appeal on 26 April 2016, arguing (1) the second BAFO round was unlawful — the city should have rejected Apcoa's offer as irregular and awarded to Besix as best-ranked regular bidder, (2) the specifications were unlawfully amended, (3) the scoring is wrong. The Council finds two parts serious. On criterion 1, three points had been wrongly deducted from Besix; on criterion 4, Besix may have been entitled to ten points against Apcoa's five for inadequate motivation. Yet no suspension follows. The Council does the maths bluntly: 77.24 + 3 + 5 = 82.24. Apcoa: 94 − 4 = 90. Gap 7.76. Too wide. No interest in the points found serious. All other pleas — including the fundamental challenge to the second BAFO round — are dismissed. The application is rejected, Besix pays €200 court fee, €700 procedural indemnity to Vilvoorde and €150 to Apcoa.
Why does this matter?
For bid managers a sober reminder: a suspension does not win you a contract. The threshold is double. You first need at least one serious plea. Then that plea must have a 'decisive impact' on the ranking — otherwise you lack interest. In practice: before filing extreme-urgency proceedings, calculate whether the errors you identified actually lift you above the winner. Closing four points is feasible; closing sixteen rarely is. For contracting authorities this is a partial relief: scoring motivation errors are a procedural risk, but a comfortable winning margin can still survive an isolated scoring error.
The lesson
If you are considering filing with the Council of State, run the maths first: add up the maximum points you can realistically reclaim from your pleas, and the maximum you can take away from the winner. Does that simulation close the gap to near zero or reverse it? You have interest. Does it shrink a 17-point gap to 8? Even with serious pleas the Council will dismiss for lack of interest. Do the calculation before drafting the writ, not after.
Ask yourself
Before filing a suspension request: have you set out in a table the highest plausible score for your offer after correcting every irregularity invoked, and the lowest plausible score for the winner — and does the gap then become negative in your favour?
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 →