Before filing an extreme-urgency action, do the maths: AGA challenged 3.06 points across six questions while the total gap was 3.24
The Council of State rejects AGA's extreme-urgency action against the award to Modero of an eight-year framework for bailiff services to the city of Antwerp, because its complaints about the page limit, the demo duration and the motivation are either factually wrong or — for the motivation challenge — leave AGA without sufficient interest: the contested points cannot bridge the total score gap.
What happened?
In 2020 the city of Antwerp launches, as a central purchasing body, a European competitive procedure with negotiation for an eight-year framework agreement (renewable for two more years) for the legal services of bailiffs, under specifications GAC_2020_01363. The award criteria: quality (45%), price (40%), planning and organisation (10%), software transfer option (5%). Within each criterion sit 38 detailed questions, together worth 1,000 points, scored on an ordinal scale from 'very weak' (1/10) to 'excellent' (10/10). Four candidates are selected, three submit offers: incumbent AGA, Modero, and Equalis. After demos, written Q&A rounds and an 'improved offer', the city ranks the offers (out of 100): Modero 88.733 — AGA 85.49 — Equalis 83.337. On 24 December 2021 the college awards to Modero. AGA files for extreme urgency on 10 January 2022 with two pleas. PLEA ONE: violation of the specifications and equal treatment. (a) Modero would have exceeded the 100-page maximum — her bid totals 119 pages. (b) Modero's interactive demo lasted 2h54 instead of the permitted 2h15 + 15-minute break. (c) Modero alone would have been allowed to submit an 'improved offer', possibly with a revised price. Counsellor Patricia De Somere (XIIth chamber) dismantles each argument. On (a): the page maximum, per the specifications, applies to 'the answers to the technical specifications', not to the entire dossier. Modero's offer indeed totals 119 pages, but page 19 expressly states 'From here begin the answers to the technical specifications, per spec p. 11', after which the section restarts at page 1 and ends at page 100. Cover, table of contents, foreword don't count. On (b): the specifications set no penalty for exceeding the demo duration, AGA fails to show that the overshoot gave Modero an advantage, and AGA itself scored higher than Modero on the demo (64 vs 56 out of 80). On (c): the 'improved offer' of Modero turns out, from the confidential pieces, to be a mere formal integration of Modero's answers to the city's written questions of 19 November 2021 and the virtual meeting of 8 December 2021. AGA also got questions and the chance to answer them in a meeting; price was not discussed. The plea therefore lacks 'prima facie factual basis'. PLEA TWO: breach of the duty to motivate. AGA criticises the wording of the assessments for eight of the 38 detailed questions — the 'kiwi-app' allegedly innovative but according to AGA just a Google Play quick-call app; the 'online auction platform' not yet operational at bid time; 'voluntary wage assignment' whose legal sustainability AGA questions; turnaround times of 'less than 1 hour' she finds incredible. The Council restates the basics: the contracting authority has discretion, the Council does not redo the assessment, the motivation need not list elements scored equally across offers — limiting itself to the differentiating points suffices. Confidentiality of bids does not bar the Council from inspecting the confidential pieces and including them in its assessment. Then comes the killing observation. AGA criticises the motivation of two questions (4.3 and 5.1) on which she scored higher than Modero. Interest? Only if she can show the gap could grow further — which she does not. For the six questions where she scored lower (1.1, 1.7, 1.8, 1.9, 2.2, 4.1) the Council does an icy calculation: the score gap between the two offers across those six questions is only 3.06 points out of 100, while the total gap is 3.24. Even if AGA won every single one of her complaints, she could not overtake Modero. Moreover, Modero and the city convincingly explain the 'kiwi-app' as an application Modero developed exclusively for the city — not the public Google Play app AGA was thinking of. Plea two is therefore not serious. Outcome: Modero's intervention granted, action rejected, AGA pays 200 euro roll fee, 22 euro contribution, 700 euro procedural indemnity to the city, and 150 euro intervention roll fee.
Why does this matter?
Three lessons for bid managers of incumbent providers thinking about an extreme-urgency action. ONE: read the specifications not just for content but for how limits are measured. AGA complained about '119 pages', but the maximum applied to a defined section — not the physical page count of the entire PDF. A complaint based on a count the contracting authority does not use will fail. TWO: a procedural deviation is not an irregularity if (i) the specifications set no sanction and (ii) you cannot show the deviation gave the winner a tangible advantage. Modero's demo ran 39 minutes too long — but AGA scored higher than Modero on the demo. No advantage = no problem. Contracting authorities can also draw a lesson: write an explicit sanction on time or page limits if you want them to be enforceable. THREE — and this is the most important: do the score arithmetic before you file. AGA attacked six questions on which she scored lower than Modero. Across those six questions the score gap was 3.06 (out of 100). The total gap between the offers was 3.24. So even if AGA wins on all six and equalises Modero on those questions, Modero still leads by 0.18. No interest = action rejected, regardless of the merits. Anyone considering extreme urgency must, in a spreadsheet, ask: which questions do I want to attack, how many points are they worth, and is that enough to overtake the winner? If not: find other pleas or stand down.
The lesson
If you want to challenge an award on motivation grounds, build a score table first: which questions do you contest, how many points can be flipped in your favour, and does that exceed the final score gap? Only when that arithmetic works do you have interest. And check whether the procedural complaints (page limit, demo duration, improved offer) actually translate into an advantage for the winner — a purely formal deviation without advantage will be dismissed.
Ask yourself
You have spotted six detailed questions where you suspect the motivation is too thin. Before going to a lawyer: tally the maximum point loss you could inflict on the winner, convert to the final-score scale, compare with the total score gap. If the first sum is smaller than the second: don't start, no interest.
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 →