0.11 points apart on a DBM contract worth hundreds of millions — and the Council sides with the authority
Two Belgian construction heavyweights clashed over the new defence headquarters tender; Futureproof Defence finished 0.11 points behind Be Defence and raised five substantial-irregularity grounds, but the Council held that Defence stayed within its broad margin of appreciation and rejected every ground.
What happened?
The Belgian Ministry of Defence launched a large-scale tender for the design, build and maintenance (DBM) of a new headquarters for the Defence Staff at the Kwartier Koningin Elisabeth — a 'New Ways of Working' office complex with catering, sport, childcare and an external conference centre. The contract fell under the Act of 13 August 2011 on procurement in defence and security and was tendered as a negotiated procedure with publication. Three consortia applied: 'Triple B', 'Be Defence' and the applicants 'Futureproof Defence' (Willemen Construct, Cordeel, Louis De Waele with Archipelago Architects as design team). All three were selected in July 2020. The specifications were amended along the way through five addenda. BAFOs (best and final offers) were assessed against administrative, financial and technical criteria using a detailed methodology in Annex E. On 23 December 2022 Defence awarded to Be Defence. Futureproof Defence ended second with a 0.11-point gap — thin enough that any individual ground could flip the result if found serious. On 6 January 2023 Futureproof Defence filed for extreme urgency with five sub-grounds in the first means: in each, the award report itself flagged an imperfection, missing element or contradiction in the Be Defence offer (e.g. on military safety principles in Annex C part C1, on extensibility in section 3.17.2, on requirement 8.1.18 for storage systems, on an addendum element in Annex F, or on a requirement Defence later relied on under article 100 of the RD of 23 January 2012). Their logic: if the authority itself flags an imperfection, it must declare substantial irregularity and reject the offer. The Council does not follow that automatic logic. The contracting authority enjoys a broad margin of appreciation when assessing the substance of offers, especially in a negotiated procedure where dialogue and amendment are central. On each of the five points the Council examined the motivation — including in detailed evaluation reports — and concluded each time that Defence had not acted in a manifestly unreasonable or careless way. The second ground (calculation of scores and application of the methodology) and the third ground were likewise not serious. Outcome: the UDN was rejected. Costs (€1,400 court fee + €24 contribution) were charged to the applicants each for one seventh, and intervention costs (€1,350) to the intervening parties each for one ninth.
Why does this matter?
For bid managers in large DBM contracts: the arrest illustrates how broad an authority's margin of appreciation is, especially in a negotiated procedure under the defence act. An award report that mentions 'observations' or 'points of attention' regarding the winning offer does not automatically lead to substantial irregularity. Your grounds against an award must go further than 'the authority itself called this a shortcoming'. For authorities: it pays to explain in the award report why an identified concern does not lead to rejection — that explanation is your shield in a UDN.
The lesson
If you argue in a UDN that an imperfection in the winning offer was substantial: build concretely on why this imperfection touches the specification requirement, not just that the authority noticed the imperfection. Refer to the exact clause, explain why the deviation is not covered by regularisation or margin of appreciation, and quantify where possible the impact on scoring (crucial under thin margins).
Ask yourself
Did your BAFO finish less than a point behind the winner? Take the award report and mark every 'point of attention' or 'observation' on the winning offer. For each: did the authority itself call it substantial? If not, why should you be able to demonstrate it in a UDN? That difference determines the strength of your application — and the likelihood the Council follows you.
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 →