It's the authority's job to send you the full motivation — not yours to request it
The Council of State suspends the award of a stucco-restoration contract at Gaasbeek Castle because the award report was sent with redacted figures and assessments — with only one point separating winner and runner-up.
What happened?
The Flemish Community (Department of Culture, Youth and Media, through the central procurement service) put out a contract for the restoration of the stucco ceiling of the Baroque pavilion at Gaasbeek Castle. A negotiated procedure with prior notice, published in June 2016. Eight applicants came forward, three were shortlisted: the joint venture BVBA B.J. Delmotte / BVBA Viering, cvba Profiel, and nv AltriTempi. After a round of negotiation, AltriTempi scored 79/100 on the three award criteria (price, concept note, work planning); Delmotte/Viering scored 78/100. A one-point gap. On 23 July 2018 the contract was awarded to AltriTempi for EUR 224,578.19 incl. VAT. The registered notice of 2 August 2018 included the award report — but partly blacked out. Competitors' prices were removed, as were the verbal assessments of their concept notes and work planning. Exactly the data you need to see why you scored one point less. Delmotte/Viering filed an extreme-urgency suspension request with the Council of State on 17 August 2018. Two pleas: (1) AltriTempi did not meet the selection condition of three references — those references were on the names of two restorers (Mses Youkes and Baeten) — and (2) the motivation of the award decision was incomplete due to the redaction. The first plea fails. CVs show Youkes was employed at AltriTempi from 2005, Baeten from 2007, and the reference projects post-date their employment. Those references therefore belong to AltriTempi itself. No extra motivation needed. The second plea succeeds. The Council notes that the full award report was only filed in court — and without confidentiality reservation (item 13 of the administrative file). The Council finds this 'curious': if it really were confidential, why file it unredacted with the Court? The sharpest findings: • 'In such a case [one-point gap] ignorance of the motives weighs all the heavier.' • 'It is the duty of the contracting authority to give immediate notice of the full motivation on which the contested decision is actually based.' • Communicating the motives by filing the administrative file after the suspension request 'does not cure the breach of the duty to give formal reasons'. The authority pointed to judgment 242.227 (27 August 2018) where the Council had accepted a similar incompleteness. No success: that was a negotiated procedure WITHOUT prior notice, a different regime. Here the Act of 17 June 2013 applies in full. Result: suspension of the award decision of 23 July 2018. The Council does not go so far as to also suspend the implicit refusal to award to Delmotte/Viering — suspension does not force the authority to give them the contract. Costs reserved.
Why does this matter?
This is the classic trap for contracting authorities when awarding to a marginally better offer: all 'commercially sensitive' figures of competitors are removed, and the rejected bidder receives an award report full of black bars. But once margins are tight, a rejected bidder can no longer assess whether scores were attributed lawfully. That is exactly what the duty to give reasons is for. For bid managers: a redacted award report is on its own already a ground for suspension — you do not need to attack the substantive award choice first. For contracting authorities: 'commercially confidential' does not hold up when the same data is later filed unredacted with the Court, and certainly not when scores differ by a tenth or two.
The lesson
If as a bid manager you receive an award report with redacted figures or assessments of the winner or other bidders — and the gap between your score and the winner's is small — that on its own is sufficient ground for an extreme-urgency suspension. You do not need to politely ask for the full version: it is the authority that must spontaneously provide the full motivation. If as a contracting authority you decide what to send after the award: everything the rejected bidder needs to verify the scoring must be there — including competitors' prices and qualitative assessments. If you really want to keep commercially sensitive information confidential, you must keep it confidential consistently in the court proceedings as well.
Ask yourself
If you receive an award report with the price or verbal assessment of the winner (or other bidders) blacked out, and your point gap is small (say <5%): the redaction is on its own a serious motivation plea — the deadline for an extreme-urgency suspension is running, so act fast.
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 →