Refusing the government commissioner's visa is no detail — it can flip the entire ranking, and that's allowed
The Council of State rejects the extreme urgency challenge against the award of an orthopedic concession at Ghent University Hospital: after the government commissioner refused his visa on the first award report, the authority could re-evaluate, swapping the winner (V!GO) and runner-up (Aqtor!) — without the commissioner exceeding his powers.
What happened?
Ghent University Hospital tendered a concession for an orthopedic workshop on its campus. Negotiated procedure without publicity, three award criteria: quality (45 pts), price/concession fee (45 pts), implementation (10 pts). Three offers, one declared irregular. After two clarification rounds, the first award report (8 August 2017) ranked V!GO first (70.63 pts, fee 665,500 euros), Aqtor! second (68, fee 1,452,000 euros). The government commissioner refused his visa. The authority re-evaluated, producing a new award report on 7 November 2017: Aqtor! first (74), V!GO second (70.63). The board awarded to Aqtor! on 20 November. Midway, V!GO tried to save the award by spontaneously raising its offer price to 275,000 euros excl. VAT — the specifications (article I.12) prohibit improvement proposals on the tenderer's initiative, so it was disregarded. V!GO challenged in extreme urgency with five grounds, all rejected. Scoring methodology: V!GO only invoked formal motivation, not material — too narrow. Improvement proposals: the elements were already in Aqtor!'s initial offer, only clarifications were added. Abnormally low concession fee: article 21, §3 of the 2011 Royal Decree on placement does not automatically apply to negotiated procedures, and the fee flows from contractor to authority, not the reverse. Government commissioner overreach: the specifications didn't provide for a jury, and the same person signed both reports (ir. Joke Poelman). The challenge was dismissed; V!GO paid 700 euros legal costs plus 200 euros court fees.
Why does this matter?
Three valuable lessons in one ruling. One: for concession fees flowing from contractor to authority, the automatic abnormal-price regime does not apply — but a duty of care remains. Two: in negotiated procedures, the authority can request clarifications, but unilateral improvement proposals (like a spontaneous price hike to save the deal) are worthless if the specifications prohibit them. Three: government commissioners at public institutions are not a formality. A refused visa can force a re-evaluation — and the second report binds, even if the ranking flips.
The lesson
For tenderers: ranked first in a negotiated procedure but the commissioner's visa is pending? You're not safe yet. Don't try to 'save' the award with a spontaneous improvement proposal if the specifications prohibit it — wasted effort and a sign of panic. When challenging scoring, invoke material motivation — not just formal. For authorities at institutions with a commissioner: document the pre-process well and ensure the second award report internally coheres with the specifications.
Ask yourself
Do your negotiated procedures include clarification meetings? Always document them in writing, explicitly noting: this is a clarification of what was already in the offer — not a new element. Otherwise you risk annulment for breach of the prohibition on improvement proposals.
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 →