Failing to compare yourself with the winners loses your case
The Council of State rejects an extreme-urgency application by an architect joint venture against Ghent University's selection of five other study teams for a €29.6 million student housing project — not because the reasoning was flawless, but because the petitioners nowhere concretely show why the five selected were not better than they.
What happened?
Ghent University launched a restricted call for tenders with European publication for the architectural and engineering services for two new student housing complexes (Campus Sterre + Campus Heymans, 567 rooms total) and a new student restaurant of 320 seats. Construction budget: €27.5 million for the homes + €2.1 million for the restaurant. Study area: about 14,500 m² + 1,000 m². The procedure had two phases. In phase 1, up to 5 study teams would be selected on two criteria: (a) team composition — competence and available profiles — and (b) experience with similar studies, evidenced by 3 to 5 self-chosen reference projects. The contract notice in the Bulletin and the OJEU listed 5 as 'envisaged minimum'; the Selection Guide itself — referred to in the notice — said 'maximum 5'. The joint venture Avapartners-Desmet Vermeulen-Arch & Teco, all Ghent firms, applied. On 7 June 2017 UGent set a list of five candidates — the petitioners were not on it. UGent's reasoning: all required disciplines were primarily present, the cooperation with Maat Ontwerpers added value, and the architectural references were contemporary — but at the same time 'it is not clearly stated how the two architecture firms will cooperate', some references 'were not further explained', and the partner for stability and engineering (Arch & Teco) 'submits no reference and the integration of techniques is nowhere explained'. (UGent later admitted this last point was an administrative oversight: the Xior Overwale 42 project was in the file but not identified as Arch & Teco's reference.) The conclusion: 'overall the file is less convincing on engineering' — not in the top 5. The JV filed in extreme urgency. Three sub-grounds. First: from the selection decision one cannot tell if they were excluded as unsuitable or were suitable but not in the top 5. The Council rejects this: the decision makes it clear they were found suitable but not ranked highly enough. Second (in the unsuitability hypothesis): UGent applied additional criteria not in the notice. Inadmissible because the first sub-ground had already failed. Third (in the suitable-but-not-top-5 hypothesis): the notice listed only a minimum of 5, no maximum, so UGent should not have decided it could only take 5. The Council: the Selection Guide referred to in the notice clearly said 'maximum 5'. The petitioners could have known this maximum and so have no interest in this grief. Then the real hammer: the Council reminds that since petitioners were found suitable, they need to show that the contracting authority could not reasonably have reached the result it did. And: 'it is striking that the petitioners nowhere in this part of the sole ground compare with the assessment of the candidatures of the five selected candidates, which alone seems sufficient to find the sub-ground not serious'. The Council then lists in detail what UGent wrote about each selected team: 'clear organigram', 'clear team composition', 'clear organisation of the cooperation', 'team tailored to the project', references on student housing, clustered student rooms (exactly what the contract specified), plans attached to references, prior cooperation. Petitioners address none of these specific findings. Conclusion: not shown that UGent could not reasonably reach its selection. Application dismissed, €700 procedural costs to UGent.
Why does this matter?
For architectural firms, engineering offices and all service providers participating in restricted procedures or competitive procedures with negotiation, this judgment is a wake-up call. The Council of State in a selection procedure does not abstractly test whether the reasoning is 'good' — it tests whether you, as the rejected candidate, have shown that the contracting authority could not reasonably have reached its selection. That implies almost always: a comparison with the winners. What did they have that you didn't? How does the authority motivate that difference? Which specific positive elements were noted for them that were also present in your candidacy? Without that concrete contrast, your ground stays in generalities, and the Council kills it without ever looking at your substantive qualities. For contracting authorities the flip side: a strong reasoning on the selected candidates is worth more than an exhaustive reasoning on the rejected ones, because it structurally discourages bidders from going to the Council without comparison.
The lesson
If you go to the Council of State as a rejected candidate against a selection decision, build your application around a detailed comparison with the selected ones. Request the full selection decision (assessing all candidates), put your assessment next to that of the winners, and concretely point out: which positive elements were noted for them that were also present in your candidacy but unrecognised? Which negative elements were raised against you that also appeared with them but were not followed through? An application that merely repeats your own qualities without comparison is structurally hopeless.
Ask yourself
When preparing an extreme-urgency application against a selection decision in which you didn't make the top N: how many paragraphs of your ground concern the assessment of the selected competitors? If the answer is 'none' or 'one', rewrite the application before filing.
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 →