If you trail by 8.01 points and can recover at most 8, you don't even get a substantive ruling
The Council of State rejects Conceptexpo's suspension request against the award to Potteau for a furniture contract for the Royal Belgian Institute of Natural Sciences because, even if all challenged points were corrected in its favour (gaining 5 points itself, removing 3 from Potteau), it would still finish 0.01 points behind the winner — and a plea with no possible impact on the ranking is no plea.
What happened?
On 14 December 2016 a tender notice was published for the supply of furniture for the permanent exhibition 'Planète Vivante' of the Royal Belgian Institute of Natural Sciences (RBINS). Open call for tenders, award criteria: price (40%), quality (50% — split into 'fitness for purpose' 20%, 'methodology' 20%, 'execution quality of two samples' 10%) and sustainability (10%). The four bids submitted all exceeded the budget and were declared unacceptable. RBINS switched to a negotiated procedure without publication (Article 26, §1, 1°, e of the Act of 15 June 2006). Four new bids came in, including those of Conceptexpo and Potteau. After an initial assessment RBINS decided to negotiate only with these two — the others did not reach the minimum quality threshold. Both finalists submitted their BAFO (best and final offer). On 5 July 2017 the contract was first awarded to Potteau (93 points against 90.5 for Conceptexpo). Conceptexpo brought urgent suspension proceedings. Before judgment, on 3 January 2018 RBINS withdrew its decision. On 27 March 2018 RBINS issued a new award decision — again to Potteau, but now with a far more detailed report assessing every sub-criterion of both finalists separately. The new scores: Conceptexpo 81.99 points, Potteau 90 points. Gap: 8.01 points. Conceptexpo went to the Council again. One plea in four branches, including: (1) first sub-branch of the first branch — error in the sub-criterion 'fitness for purpose': RBINS scored Potteau positively for specifying the exact type of LED lamps (Ledneon-flex, Luciold Mono, with technical sheets), even though the CSC required LEDs anyway. On aggloméré: during negotiations Conceptexpo (to lower the price) had replaced its original multiplex with aggloméré for the inner platform structures. RBINS judged aggloméré unsuitable — swells with humidity, crumbles when disassembled. (2) Second sub-branch — Conceptexpo claimed 1 point extra and 3 points off Potteau. (3) Fourth branch — Conceptexpo claimed 3 extra points for sustainability. The Council rejected the first sub-branch on the merits: even if the CSC required LEDs, Potteau had supplied technical sheets and specific types so the contracting authority could assess quality, while Conceptexpo had not. On aggloméré: Conceptexpo had not shown that RBINS made a manifest error of assessment in fearing the material would swell — even when covered by MDF panels. But for the second sub-branch and fourth branch the Council didn't even reach the merits. It did the math: 'There is a gap of 8.01 points between the bid of the applicant and that of Potteau. Even assuming that the second sub-branch of the first branch and the fourth branch are serious and that a total of 5 points must be added to the applicant's score while 3 points must be removed from Potteau's, these additions and subtractions have no consequence on the ranking since they cannot bring the applicant's bid into first place.' The reasoning: 5 + 3 = 8 points of swing, while the gap is 8.01 points. One hundredth short. The pleas 'cause no grievance' to the applicant — 'ne font pas grief'. Therefore inadmissible, without further discussion. Result: the first sub-branch was rejected on the merits, the others were not even examined. The Council rejected the suspension request and ordered Conceptexpo to pay 700 EUR in procedural costs.
Why does this matter?
Bid managers building scoring challenges often think: 'if one criterion is wrongly assessed, the whole decision is challengeable.' This judgment teaches that the Council takes a sober view. A plea is only admissible if — read as favourably as possible — it can put your bid in first place. Otherwise it 'causes no grievance' and is dismissed without substantive discussion. The arithmetic is brutally simple. Add up: maximum points you could win per branch of your criticism + maximum points you could have removed from the winner. Compare with the point gap. If the sum ≤ the gap, that plea is inadmissible — full stop. Conceptexpo fell 0.01 points short. A slightly bigger gap might have led to the other branches being examined and possibly upheld. For contracting authorities: this is good news for the robustness of your decisions. When a petition arrives with multiple grievances, do the sum per grievance: how many points could the applicant realistically 'shift'? If that sum doesn't exceed the gap, you can classify those pleas as inadmissible in your defence. That narrows the battlefield considerably. For bidders this also means: if you finish just below the winner and you are convinced the scoring is wrong, focus on the one or two sub-criteria where you can show maximum point gain. Avoid long lists of small 1-point grievances that, even cumulated, fall short of the critical ceiling.
The lesson
Do the math before you file. Build a table: for each criticism (per sub-criterion or per branch) note the maximum points you can gain + the maximum points you can have removed from the winner. Sum them up. If that sum is not strictly greater than the point gap, the Council will declare the plea inadmissible for lack of grievance. Sums equal to the gap are not enough — Conceptexpo was at 8 vs. 8.01 and lost. Save your ammunition for pleas whose cumulative impact exceeds the gap.
Ask yourself
You're considering challenging an award decision in which you came second. The point gap is X. Per planned grievance — can you quantify how many points you'd realistically gain or have removed from the winner? Does the cumulative sum exceed X? If not: drop those pleas from your petition, the Council will dismiss them as inadmissible for lack of grievance.
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 →