If your tender writes 'no negotiation if the winner stands out', then 1.4 points out of 100 is not standing out
AIVE wrote in the tender that it would skip negotiation if the top-ranked offer 'stood out' from the others — then awarded directly to Van Wingen, 1.4 points ahead of Bergerat Monnoyeur, without even explaining why that counted as standing out. The Council of State suspends.
What happened?
The Luxembourg intercommunale AIVE wanted to replace the biogas cogeneration plant at Tenneville: supply, installation, commissioning and full-service maintenance over the asset's lifetime. Estimated value: EUR 4 million ex VAT. First attempt in November 2018 via open procedure: all offers were substantially irregular and declared void. On 31 January 2019 AIVE switched to a competitive procedure with negotiation (article 38, §1, 2° of the law of 17 June 2016) and consulted the three bidders from round one: Bergerat Monnoyeur, GRS Valtech and E. Van Wingen. The amended tender contained a striking 'Absence of negotiation' clause: given time pressure (winter, loss of green certificates) and the fact that bidders were essentially submitting the same offering twice, no negotiation phase would take place 'if the top-ranked offer stands out from the others and meets the contracting authority's needs'. At the opening on 11 February 2019 all three submitted again. The 20 February analysis report ranked: Van Wingen-Variant 94, Bergerat Monnoyeur 92.6, Van Wingen-Base 88.6, GRS Valtech 84. AIVE decided not to negotiate and awarded lot 2 directly to Van Wingen on 21 February for EUR 3,816,589 ex VAT. Bergerat Monnoyeur — second by 1.4 points — sought urgent suspension and prevailed. President Imre Kovalovszky (VIth chamber) reasons in two steps. First: article 38, §5 of the 2016 law makes negotiation the rule and skipping it the exception, available only if reserved in the contract notice — which AIVE did, but under a specific condition. Second: 'stands out' is not free space. AIVE must respect its own self-imposed condition under patere legem quam ipse fecisti. 1.4 points out of 100 — under 1.5 percent — cannot reasonably be considered 'standing out' under urgent review. And the award decision contains no reasoning at all on why Van Wingen 'stood out'. Award suspended.
Why does this matter?
In a competitive procedure with negotiation, negotiation is the rule — skipping it is the tender-grounded exception. Many authorities see it the other way around. Writing an 'unless' clause in the tender (e.g. 'no negotiation if the winner clearly stands out') creates a double duty: respect the condition AND motivate why it applies in the concrete case. Both were missing here. For bidders ranked second after a 'no-negotiation' procedure: if the gap is small — under a few percent — you have a strong suspension ground because 'stands out' implies a noticeable difference. For authorities: only write such a clause if you are willing to negotiate when the gap is small, and explicitly motivate when you choose not to.
The lesson
Don't write an 'unless' clause in a negotiated-procedure tender that you don't want to honour. If you do and your winner scores 94 against second-place 92.6: then either negotiate, or write a paragraph in the award decision motivating why a 1.4-point gap out of 100 actually does count as standing out in your scoring grid. An empty assertion or implicit choice will not hold. For bidders: every time you finish second under a 'no-negotiation' clause, check (i) the exact tender wording, (ii) your point gap to the winner, and (iii) whether the award decision motivates the application of the clause. Two of three missing: file for suspension.
Ask yourself
Does your tender include a passage like 'no negotiation will take place if...'? Does the award decision contain a specific paragraph explaining why that condition is met in this concrete case? And: is the gap between first and second more than 5%? Below that — and certainly under 2% — you will lose a suspension procedure.
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 →