From 30/30 to 12/30 in the BAFO — when the contracting authority drops a hint and you ignore it
The Council of State refuses to suspend the award of the MIVB Erasmus metro depot (77.98 million euros) to THV CFE-Blaton, ruling that in a negotiated procedure with BAFO it is normal for scores to swing dramatically between the first offer and the final offer — particularly when one bidder responds to a mid-procedure signal from the contracting authority and the other does not.
What happened?
On 21 March 2014, MIVB launched a negotiated procedure with European publication for the construction of the Erasmus metro depot — a mostly underground depot within the Pulsar automation programme. The contract has three phases: civil engineering plus storage and partial workshop equipment, supply and installation of the remaining equipment, and a 1,200-metre test track. Five candidates were shortlisted. After the first offer on 2 March 2015, three bidders were admitted to negotiations: THV CFE-Blaton, THV Franki Construct-Jan De Nul and the petitioner THV BESIX-EJD. On 15 June 2015 — three months before the BAFO deadline — MIVB sent the three bidders an important signal: 'When preparing your planning, it is important that the tracks of the rear station Erasmus be tackled as late as possible. Removing them causes an unacceptable degradation of operating conditions at the Erasmus terminus.' BAFOs were filed on 18 September 2015. On 18 December 2015, MIVB asked further questions — explicitly stating that intermediate milestone T1+18 (delivery of the first five storage positions within 18 months) was dropped, and that planning could be adjusted. BESIX-EJD answered laconically on 20 January 2016: 'Our planning can indeed be adjusted.' But it filed no concrete adjustments. CFE-Blaton, by contrast, had already structured its BAFO around the 15 June signal: works on the rear-station tracks would only start 17 months after the order to commence, with mitigating measures protecting operations. BESIX-EJD stuck to its original approach: works on the rear station after 8 months — the very thing MIVB had asked to avoid. On 20 July 2016 MIVB awarded the contract to CFE-Blaton for 77,980,404.86 euros ex. VAT, with a 55-page reasoned decision that doubled as the evaluation report. The score swing between first offer and BAFO was dramatic. On the sub-criterion 'phasing of execution and intermediate milestones': BESIX-EJD went from 30/30 to 12/30, CFE-Blaton from 10/30 to 27/30. On 'execution planning': BESIX-EJD from 30/40 to 24/40, CFE-Blaton from 25/40 to 36/40. BESIX-EJD sought urgent suspension on three grounds: first, that CFE-Blaton's BAFO had missing prices (482,602.60 euros) which MIVB unlawfully let it cure under Article 95 of the Royal Decree of 16 July 2012; second, that dropping milestone T1+18 was a tender amendment shaped around CFE-Blaton; third, that the scoring relied on factual errors (1,095 days instead of 794, 309 days for foundations instead of 220). Chamber president Eric Brewaeys (12th Holiday Chamber) dismissed all three. The 'missing' amount was not a gap but a 'Omissions' note added by CFE-Blaton itself flagging an additional cost for chimney fire-resistance — no Article 95 application, no regularisation. Milestone T1+18 was not classified in the tender as a 'critical' or 'imposed' milestone, but as an 'interface milestone' that the tender expressly stated would 'be discussed during the procurement procedure'; further, the bidders had been given a chance to adjust their planning and BESIX-EJD had let it slip. The 1,095-day figure was a clear clerical slip: the surrounding reasoning expressly stated BESIX-EJD met the requirements, which is impossible at 1,095 days against a 882-day cap. The Council formulated a rule of broad relevance: 'A legality complaint based purely on a difference in scoring between initial offers and BAFOs cannot in principle be regarded as serious.' BESIX-EJD was ordered to pay 400 euros in court fees plus 700 euros in procedural compensation to MIVB and 300 euros to the intervening parties.
Why does this matter?
A negotiated procedure with BAFO is fundamentally different from an open procedure: the first offer is a working document, the BAFO is what counts. Signals, questions and even ordinary messages from the contracting authority between the first offer and the BAFO are not optional context — they are signals your BAFO must substantively respond to. A bidder who simply repolishes the first offer for its BAFO risks dramatic score erosion. For contracting authorities this judgment is crucial: you may drop or adjust intermediate milestones during a negotiated procedure, provided the tender qualifies them as 'discussable' or 'interface' and all bidders get a fair chance to adjust their BAFO. You may also justify large score gaps between first offer and BAFO by the quality of the substantive response to your signals — not just the offer's numbers.
The lesson
Treat every message from the contracting authority between first offer and BAFO as a mandatory revision trigger, not optional context. Maintain a 'change log' with your BAFO that explicitly shows how you addressed each request or signal. When the authority asks questions after the BAFO has been filed — as here on 18 December 2015 — do not reply laconically with 'can be adjusted'; submit a concrete revised planning document. Empty responses are penalised. And remember: in urgent suspension proceedings, the Council of State is reluctant to treat score swings between first offer and BAFO as a legality defect — that is inherent to the procedure.
Ask yourself
You file a first offer and reach the BAFO stage. During negotiations the authority sends a message about an operational constraint (e.g. 'do X as late as possible'). How many pages of your BAFO actually deal with how you have absorbed this? If the answer is 'zero or one': you are about to watch your 30/30 turn into 12/30.
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 →