Three weeks faster than the winner — and yet the same 20/30: a bonus clause for early delivery you don't apply costs you the award
The Council of State annuls the City of Halle's award of the floor renewal of CC 't Vondel to Phenix Group: the specifications stated that an early delivery would have a 'favourable influence' on the execution-time criterion, but the City gave both Phenix Group and Stals en Zoon Parketvloeren — whose delivery was three weeks shorter — an identical score of 20 out of 30 with the sole motivation 'falls perfectly within [the] requested period'.
What happened?
In late 2020, the City of Halle wanted to renew the floor of the great hall in CC 't Vondel, with a view to a new tribune and the reopening of the cultural centre at the end of January 2021. Simplified negotiated procedure with prior publication, nationally published. The specifications set three award criteria: price (50 points, classic ratio formula), execution time (30 points) and quality (20 points). For execution time, the specifications stated: 'The works can only start on 06/07/2020 and must be fully completed by 27/12/2020. This includes, among other things, the drying times of the concrete, varnish for the parquet, clearing the site. The floor must therefore be fully accessible from 28/12/2020. […] Early completion of the works described in the specifications will have a favourable influence on the points awarded in the award criteria.' The technical part requires C25/30 concrete with a thickness between 100 and 120 mm, in line with the BBRI/CSTC technical notices TV 204 and TV 267. Three bids are submitted on 31 March 2020. Stals en Zoon Parketvloeren offers 16 October 2020 as completion date — two months and eleven days before the deadline, and (as later transpires from the confidential file) at least three weeks before Phenix Group. In the 7 April 2020 award report both bidders nonetheless receive exactly the same score of 20 out of 30 on the execution-time criterion, with identical motivation: 'Very clear description of execution period. Falls perfectly within [the] requested period.' Phenix Group ends at 85% (50 price + 20 time + 15 quality), Stals en Zoon at 83.24% — gap of 1.76 points. On 23 April, before the award, the City still emails Stals asking for a detailed planning, expressing explicit doubt about feasibility and inviting attention to concrete drying times under technical notices TV 218 and TV 189. Stals replies on 24 April with a planning providing for more than 11 weeks of drying. On that same 24 April, the City awards the contract to Phenix. Only in a 30 April email — after the award — does the City explain its calculation: 20 points for those delivering within the requested period, plus '2 extra points per week of early delivery', provided the drying time is 'realistic'. The City finds 11 weeks of drying unrealistic for the concrete type in the specifications (it itself uses 15 to 16 weeks) and therefore refuses the bonus. Stals takes the case to the Council of State on the basis of a breach of the duty to motivate (second ground) and of the transparency and equality principles (third ground). The City counters with its discretionary power and the argument that Stals never mentioned 'fast-drying concrete' in its bid; such a variant was, moreover, not allowed by the specifications. The Council first sets a principle: it cannot substitute itself for the contracting authority for substantive evaluation but can verify whether the motivation is sufficiently externalised and substantive. It then finds — and this is the heart of the ruling — that Stals' execution time is materially shorter than Phenix's, and that even using the 15-to-16-week drying time advanced by the City itself, Stals' time still remains shorter than Phenix's. The arithmetic conclusion is inescapable: under the City's own bonus rule, Stals should have received more points than Phenix. The motive of awarding 20/30 to both because their period 'falls perfectly within [the] requested period' is not a substantive motivation — it disregards the specification clause that expressly rewards early delivery. Second and third grounds founded, the 24 April 2020 decision annulled, City of Halle ordered to pay costs (€200 court fees + €20 contribution + €770 procedural indemnity). Three years after the hall has long reopened to the Halle cultural public, the parquet layer wins the case.
Why does this matter?
For contracting authorities, the ruling is a warning on two levels. First: a specification clause promising a favourable influence in case of early delivery creates an obligation to apply that clause. If you write a bonus rule into the specifications — even informally ('will have a favourable influence') — you cannot, without consequence, give two bidders with materially different periods the same score. The Council of State reads the specifications as a legal act from which the contracting authority cannot deviate without substantive motivation. Second: a contracting authority that suspects a bid proposes an unrealistic period may certainly take that into account — but must show it in concreto. Here the City had a defensible point on drying time, but the reasoning did not hold up arithmetically: even with 15 to 16 weeks of drying, Stals remained ahead of Phenix. Anyone invoking such a technical counter-argument must be able to close the numbers. For bid managers, the lesson is concrete: if you offer earlier delivery, your planning must be technically airtight. Explicitly mention the drying times you use, the BBRI/CSTC standards you comply with, and — if you are 'faster' than the market — why you are (fast-drying concrete, parallel execution, available teams). Without this, the contracting authority can contest your period and refuse the bonus. But even if it tries: make sure the numbers still come out in your favour, even after the correction it would want to impose arithmetically. For challengers: an identical score for unmistakably unequal performances is always a strong attack angle. The decisive question before the judge is not 'could the contracting authority doubt my planning?' but 'even after that doubt, am I objectively better than the winner?'.
The lesson
Contracting authority, you have set in your specifications a bonus rule for a better execution time, a higher quality or a product deliverable faster? Apply it arithmetically and transparently. Detail in the award report how many weeks/points/euros separate offers and place the bonus there. If you give two bidders with different performances the same score, your motivation 'falls perfectly within [the] requested period' is not a valid justification — the Council of State reads it as no motivation at all. If you have technical objections to a bidder's planning (drying, capacity, teams), follow the calculation through to the end: compute what that bidder's adjusted period would be after your correction and check whether it then equals or exceeds that of the winner. An identical score is only defensible if, after correction, they are equal or the winner overtakes the challenger. Bid manager, you offer faster delivery than a competitor? Substantiate your planning down to the detail in the bid itself — not only when the contracting authority asks. Mention the BBRI/CSTC standards or equivalent technical references, give the drying, hardening or testing times explicitly, and — crucially — give the reason for your acceleration. A contracting authority that comes up with a 'realistic' period after the award will then have a harder time choking you, and if it insists, your numbers — provided they are airtight — will still come out in your favour.
Ask yourself
You have lost the award by a minimal point gap. You look at the scores and you see: on the quality or time criterion you received the same score as the winner, even though your offer is demonstrably distinct (earlier delivery, qualitatively stronger material, more years of experience). Then do this: reconstruct the specification clause that says 'a better/faster/higher performance will have a favourable influence', count your real advantage in weeks/units/years, multiply by the bonus per unit (if it is in the specifications), and check whether the gap closes the point difference between you and the winner. If the contracting authority has a technical counter-argument (your planning is unrealistic, your material is not compliant), pursue that line too: even after the correction it would want to impose arithmetically, does your offer remain better than the winner's? If yes: defect of motivation, serious ground, strong chance of annulment.
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 →