Calculating the fee percentage on a fixed reference estimate rather than on the actual proposed project budget is no manifest error — it is a legitimate choice of the contracting authority
The Council of State rejects the suspension of the award of the Tournaisis police-station architecture contract to BAEB-BAG-VK Engineering, because a contracting authority that calculates the fee percentage on a common reference estimate (€10m) rather than on each bidder's individual project estimate stays within its discretionary freedom — even if the winner can thereby work with a much higher project budget (€14.3m) than the other bidders.
What happened?
On 28 June 2018 the Tournaisis police zone publishes a notice for a service contract: 'Architecture, stability, special techniques, acoustics, security coordination (study and execution) and PEB' for the construction of a police station. The total project value is estimated at €12,000,000 excl. VAT. Procurement procedure: competitive procedure with negotiation. Applications were due on 21 August 2018, offers no later than 4 April 2019. Six candidates are selected; the temporary association AVA Partners + ETAU + Tractebel Engineering is one of them. The specifications provide three award criteria, with criterion 1 'cost of the mission' weighing 35 points. The method to evaluate the cost criterion is notable. The contracting authority combines the fee percentage offered by each bidder with a reference amount it has set in advance (€10m) — not with the project budget proposed individually by each bidder. The reasoning: at this stage a precise budgetary impact assessment is impossible, and by using one common reference price the authority wishes to 'prevent bidders from underestimating the project budget at the expense of fair competition'. After evaluation, the police zone college decides on 29 August 2019 to award the contract to the temporary association BAEB - BAG - VK Engineering. AVA Partners + ETAU + Tractebel Engineering — not retained — file an extreme-urgency application on 16 September 2019. Their argument is precise: BAEB proposed a project estimate of €14,297,340 excl. VAT in its offer. The contracting authority calculates BAEB's total fee at €1,409,652.62, an amount mentioned in the award decision as 'realised on the basis of the estimated net cost of €14,297,340'. But for the criterion 1 scoring, BAEB's fee percentage is applied to the reference cost of €10m — yielding a much lower outcome (€1,010,000) and giving BAEB a more favourable score than would result from applying the €14.3m. Applying the same method to the realistic project estimates, the applicants claim, would put their offer first (79.8% of points). The applicants also assert their admissibility against the implicit refusal to award them the contract. They face immediate headwind: the Council recalls that a rejected bidder is admissible against an implicit refusal only if they can convincingly show they should have received the contract. Here, suspension of the award decision based on a critique of the award criterion would not automatically oblige the authority to award the contract to the applicants — it depends on how the authority re-exercises its choice. The application against the implicit refusal is therefore inadmissible. On the merits: the Council recapitulates the legal principles surrounding award criteria under article 81 § 1 of the law of 17 June 2016 — freedom of choice, but not unlimited. Criteria must be: linked to the object, not vague or arbitrary, objective and non-discriminatory. The Council may not substitute its judgment for the authority's; it can only censure manifest errors in the choice or definition of a criterion. In this case the Council analyses the choice to base fee scoring on a fixed reference estimate. The authority justified that choice by the impossibility of precise project-impact estimation at that stage and by the desire to prevent budget underestimation. The Council finds that choice 'neither unreasonable nor the result of a manifest error of assessment'. The fact that other amounts (such as individual project estimates) could have been used does not prove a manifest error — neither in itself nor on the basis of the alternative table presented by the applicants. The allusion that BAEB scored better on criteria 2 and 3 ('vision') thanks to a higher 'supplementary budget' is not sufficiently substantiated to demonstrate a violation of the non-discrimination principle. The ground is not serious; the application is rejected. AVA + ETAU + Tractebel pay €700 procedural compensation plus €600 court fees.
Why does this matter?
For those drafting offers for architecture or study contracts, this judgment matters for two reasons. First it illustrates how broad the discretion of a contracting authority is when choosing a cost-weighing method. Percentage-on-fixed-reference is in this context comparable to the logic behind a 'unified tariff' for fee calculations: it neutralises what bidders include in their project estimate and focuses purely on the price of the service itself. That this can incidentally benefit those who dare to propose a higher project budget is not automatically a manifest error — it is a choice the contracting authority was entitled to make. Second and operationally more important: the judgment shows how applicants who feel disadvantaged by an award-criterion methodology must construct their grievance. Producing a table that recalculates with a different method and shows you would win is not enough. You must show why the chosen method is manifestly unreasonable in the concrete case — for example because it is in fact unenforceable, internally contradictory, or favours a specific bidder in a way that did not flow from the object. A ready alternative calculation is a smokescreen if the real complaint is 'I would have preferred another method'. For contracting authorities the judgment confirms that 'clean' award criteria — simple, not vague, objective, published in advance — form a strong defensive line against suspension applications. It also shows that such a choice requires documentation: the reasoning ('preventing budget underestimation') was here essential to convince the Council it was not arbitrary.
The lesson
If you challenge an award based on an award-criterion methodology (for example how fee percentages or prices are weighed): do not build your ground on a 'recalculate it differently and I win' table. Show what in the chosen method is manifestly unreasonable — for example that it implements an unannounced criterion, or that it specifically advantages one bidder in a way unavailable to others. A recalculation with different parameters is no violation of the competition principle; it is your preference. And your preference is not the standard.
Ask yourself
If I claim that the calculation method of an award criterion is 'unreasonable': can I concretely show why (1) this method produces a differential evaluation that does not flow from the contract's object, or (2) advantages a specific bidder in a way unavailable to others? If I can only present a recalculation: ground is not serious.
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 →