An award report that also voices criticism of the winner is no reason to overturn the award — what counts is what the report puts beside it
The Council of State rejects an extreme-urgency action against the award of an architecture contract for a Schaarbeek crèche: the fact that the award report also expresses reservations about the winner does not mean the score of 4 out of 5 is unjustified, when alongside it five concrete advantages are listed that the applicants' bid does not offer.
What happened?
The municipality of Schaarbeek wants to convert an old garage at Brichautstraat 13-15 into a Kind & Gezin crèche with 50 cots, as part of the sustainable neighbourhood contract Heuveltje. It launches a competitive procedure with negotiation under article 38, §1, 1° of the 2016 Public Procurement Act, for a full architecture, engineering, EPB and safety coordination contract. The award criteria are assessed by an advisory committee of representatives of the contracting authority, external experts and the relevant administrations. Four criteria: urban character (20 points), liveability (40), craftsmanship (20) and feasibility (20). Each bid is scored per criterion from 0 (insufficient) to 5 (very interesting). The method explicitly states that a score of 4 ('good and advantageous') requires the bid to offer 'some particular advantages compared with the other bidders'. 22 architectural firms apply. Five are selected, four submit a bid. On 30 November 2022 the bidders present their preliminary sketch to the jury. Scores out of 100: firm L. 60, firm M. 56, the joint venture OFFICEU + OSK-AR 68, and cvba ZAMPONE ARCHITECTUUR 76. On 30 December 2022 the College of Mayor and Aldermen awards the contract to ZAMPONE. On 10 March 2023 OFFICEU + OSK-AR turn to the Council of State with an extreme-urgency suspension request. Their core complaint: ZAMPONE scores 4 out of 5 on both 'urban character' and 'craftsmanship', yet the award report also contains substantial criticism of those parts of its bid — the jury contests 'the appropriateness' of the proposed shared room as an activation element of the façade, expresses reservations about the rear roof volume, doubts the feasibility of more interactive engagement with the neighbourhood, and identifies a 'lack of de-densification' at an unfortunate location. How can a bid with all those reservations deliver 'particular advantages' as the methodology requires? Three additional complaints follow. One: their own bid scored only 3 out of 5 on 'feasibility', although they alone offered a lower price per m² than the client's estimate (the other three were at or above the estimate) — surely a particular advantage. Two: the motivation refers to 'regional urban-planning ambitions for permeable spaces and de-densification of the inside of urban blocks' to penalise their design. But those ambitions appear nowhere in the specifications. The only anchor is a Brussels government decree of 23 December 2021 merely launching a procedure to amend the regional development plan — not yet binding. Treating it as an assessment element violates the transparency principle and article 81 of the Procurement Act. Three: ZAMPONE gets four points on 'craftsmanship' partly for proposing untreated cork panels for the façade — but cork is fire reaction class E, while the Royal Decree on Basic Standards requires class C. Fire-unsafe material should not score positively. The Council of State follows none of these arguments. On the first plea: the advisory committee did compare the bids and gave a value-judgement-based motivation, not a mere description. Five concrete advantages of ZAMPONE are listed in the report — the preservation of 'the particular identity of the old garage', the creation of a portal with a view on the crèche and its garden, a widened pavement as a meeting space for parents, a specific opening up of the inside of the block via extrusion and demolition of the flat roof of no. 15 while keeping the beams (and thus 'the history of the site'), and two large de-mineralised areas 'matching the expectations of the Brussels Region on sustainability'. The reservations in the report are points of attention for the final design, not fundamental objections. For OFFICEU + OSK-AR by contrast, the 'lack of permeability' inside the urban block is described as 'a problem regarding a fundamental dimension of the project'. On the lower price per m²: that is no automatic particular advantage. The specifications require a total price including external arrangements. The applicants spend a substantial part of their budget on external arrangements (the elevated playful garden on the roof of no. 15). The lower price per m² is therefore offset by higher costs elsewhere and relativises itself. On the 'regional ambitions': that criticism is just one of several negative elements in the assessment. Even leaving aside whether the reproach is well-founded, it is not decisive. The jury also found the façade 'too eclectic' or 'too playful', noted that a volumetric addition near the old caretaker's house creates privacy and shadow problems, and considered the three interior exclusions of limited use as green spaces. One questionable motive within an otherwise self-supporting assessment does not tip the outcome. On the fire safety of the cork cladding: the municipality submits a fire-test result on the specific cork cladding proposed. It reaches class B — better than the required class C. Applicants object that this test was carried out only after submission of bids, breaching the formal duty to motivate and the duty of care. The Council answers that they fail to show what concrete influence this had on the contested decision — and therefore what interest they still have in raising the point. No plea is prima facie serious. The application is rejected. OFFICEU + OSK-AR are ordered to pay 400 euros docket fee (half each), 24 euros contribution and 770 euros procedural indemnity to the municipality of Schaarbeek.
Why does this matter?
For anyone bidding on contracts with qualitative award criteria — architecture, design, consultancy, communications, study contracts — this judgment is the standard benchmark for suspension pleas against 'inconsistent' motivation. It is not enough to show that the jury also criticised the winner; you must show that the balance between advantages and criticisms tips unjustifiably. And an 'obvious advantage' of your own bid (a lower price, a higher quality on a specific point, a shorter delivery time) only matters if it is not offset by something else in the logic of your bid. The judgment also reaffirms that the contracting authority may carry out factual investigations after bid opening (such as a fire test on offered material) as long as the bid itself is not modified. Anyone raising only at the hearing that this post-hoc analysis violates the formal motivation duty must concretely show what influence it had — otherwise interest is lacking.
The lesson
Before considering an extreme-urgency or ordinary suspension against a subjective-criteria award: make two columns from the award report — advantages of the winner and disadvantages of the winner — and compare them with the same columns for your own bid. If the winner's advantages column contains three or more concrete elements your bid demonstrably lacks, the plea 'there is also criticism of the winner' is prima facie not serious. If you want to invoke your own 'obvious advantage' (lower price, better energy performance, shorter timeline), first check whether that advantage is not relativised by something else in your bid (higher cost elsewhere, weaker quality on another criterion). And if you allege that the contracting authority added a 'new assessment element', verify whether that element alone supports the score — if the jury formulated four other substantial criticisms, your plea will not tip the outcome.
Ask yourself
For your last lost bid, go to the award report and count: how many concrete positive elements did the jury identify for the winner, and which of these does your bid demonstrably lack? If that count is three or more, suspension on the basis of 'inconsistent motivation' regarding the winner is almost hopeless — work on other pleas instead (bid regularity, specifications conditions, price analysis).
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 →