BAFO by email instead of e-Tendering: prima facie unlawful — but if you take the email yourself, you can no longer claim an interest in challenging it
The Council of State rejects Spikes NV's extreme-urgency action against the award to Skyhaus BV of an IT contract for the pseudonymisation and automatic summarisation of court decisions — three 'clever' attacks (wrong award amount, price evaluation method, BAFO by email) all fail, and the ruling confirms in passing that e-Tendering is also mandatory for BAFOs, even though the contracting authority is saved here by lack of interest.
What happened?
The Federal Public Service Justice launches a competitive procedure with negotiation for the development, maintenance and support of two modules: module 1 pseudonymisation, module 2 automatic summarisation and tagging of court decisions — both for the central register of judicial decisions to be operational by 1 December 2023 (Art. 782 § 4 of the Judicial Code, Act of 16 October 2022). Specifications CDC2022.0416. Duration: 48 months + three tacit 12-month renewals (max. 84 months). Eight candidates submit a request to participate, three are selected, and ultimately two bidders submit a tender: Spikes NV and Skyhaus BV. The specifications set three award criteria: price (40 points), quality of the proposed solution (40 points), and quality for general requirements (20 points, including a 'Timing and parallelisation' sub-criterion worth 10 points). Standard price formula: P_min / P_offer × 40. The bid form requires two things: first a 'global price for development' (including 24 months of maintenance and support after release, covered by the warranty period), and second a 'global monthly cost for hosting and management' which will be multiplied by 36 — those 36 months matching the three renewal years. On 1 March 2023 both bidders are invited separately to a meeting and asked to submit a Best and Final Offer (BAFO) by 8 March, not through e-Tendering but by email to [email protected]. An Excel file to be completed accompanies the invitation, with automatic formulas: cell B7 = B1 + 36*B2 + B4 + 36*B5 (total project price excluding Azure), cell B14 = B7 + 84*B10 + 60*B11 + 60*B12 (total project cost including Azure credits for development, test and production environments). Spikes lands at €2,772,912.91 excluding VAT, Skyhaus at €2,814,799.00. The FPS corrects Spikes' total under Art. 34 of the 2017 Royal Decree on placement and reduces it to €2,720,410.99, finding no irregularity in Skyhaus' bid. Final scores: Spikes 85.20/100 (40 price + 45.20 quality), Skyhaus 87.26/100 (38.66 price + 48.60 quality). Gap of 2.06 points. The 9 May 2023 award decision awards to Skyhaus 'for a total award amount of €3,017,971.00, that is €3,651,744.91' — a higher amount than the €2,814,799 on which the price score was calculated. Spikes goes to the Council of State on extreme urgency with three grounds, all three failing. First ground: 'you based the price points on the wrong amount, since the decision itself mentions €3,017,971.' FPS reply: the higher amount is what must be budgeted, accounting for the fact that early production allows more maintenance months to be invoiced within the first 48 months and therefore costs more than the 36 months used for comparison. The Council calls the explanation 'plausible at first sight' and finds that 'on this point the contested decision appears to be tainted by a defect of motivation' — but Spikes has no interest in this ground, because the amount did not influence the evaluation of prices. Second ground: 'you changed the price evaluation method after opening with a fake clarification on 1 March, and the uniform period of 36 months neutralises my advantage as a fast deliverer with low maintenance prices.' The Council reads the specifications as a whole: point A.16.2 ties price to 'price of the contract', annex A specifies that the 'global monthly cost for hosting and management' is multiplied by 36. The 1 March clarification adds nothing essential — it makes explicit what already lay in the specifications. No breach of Art. 38, § 5. And the specifications separate price and timing into two distinct criteria: fast delivery is rewarded under the quality criterion 'Timing and parallelisation', not under price. The 'trade-off' Spikes made is its own strategic choice, not a dilemma imposed by the specifications. A uniform calculation period of 36 months is an 'objective and unequivocal criterion' that the contracting authority may choose to ensure comparability, even though this period does not match actual performance — Art. 81 of the 2016 Public Procurement Act is not breached. Third ground: 'BAFOs by email instead of e-Tendering breach Art. 14 § 7 of the 2016 Public Procurement Act and Art. 42 of the 2017 Royal Decree on placement (signature on the submission report).' This is where the most interesting part of the ruling sits: the Council of State agrees with Spikes prima facie on the law — Art. 14 § 7 'appears to be drafted in mandatory terms', does not distinguish between initial offers and later offers, and none of the exceptions applies. 'At first sight the use of the e-Tendering platform appeared to be mandatory in the present case, not only for the submission of initial offers, but also for the submission of BAFOs.' But point A.12 of the specifications expressly provided an exception 'except for the BAFO', Spikes did not object to that clause, and itself submitted a BAFO by email. Both bidders received the same email on 1 March 2023 with the same explanation on the price element, both had exactly seven days, and both BAFOs were digitally signed. The mode of submission could not have influenced the evaluation of the offers. Application of Art. 14, § 1, second paragraph of the coordinated Council of State Acts: 'this irregularity does not appear to be capable of leading to annulment' — lack of interest excludes even suspension. None of the three grounds is serious, the action is rejected, Spikes pays €200 in court fees + €24 contribution + €770 procedural indemnity.
Why does this matter?
Three lessons for practice. One: the ruling confirms for the first time so explicitly that the e-Tendering obligation of Art. 14 § 7 of the 2016 Public Procurement Act also applies to BAFOs in a competitive procedure with negotiation — the Council reads the Act together with Art. 22(6) of Directive 2014/24/EU and finds that the provision does not distinguish between initial offers and later offers. Contracting authorities providing a 'BAFO by email' exception in their specifications (as FPS Justice did at point A.12) place themselves in a grey zone: the clause is prima facie contrary to law. It is rescued this time by the bidder's lack of interest, but in another factual setting — a bidder protesting the clause in time, or a bidder whose BAFO is not properly digitally signed — it may well lead to suspension. Two: the ruling confirms that a uniform calculation period for monthly costs (here 36 months, while the actual period will fall between 36 and 54 months) is a lawful choice, even when it does not match the actual cost period of a fast deliverer. For bid managers: a 'clever' strategy of fast delivery generating a long paid-maintenance period to make a low monthly price weigh more does not work if the specifications fix the maintenance period as a flat amount — and you cannot challenge it afterwards as 'neutralisation' or 'manipulation'. Three: an award decision quoting an amount higher than the one used for the price criterion suffers a defect of motivation, but that defect is not autonomously voidable as long as the difference did not affect the evaluation of the offers. For challengers: target the difference that actually has impact, not the one that only touches the motivation.
The lesson
For contracting authorities: do it through e-Tendering, BAFOs included. The reasoning 'we already manage negotiations by email anyway' does not stand prima facie before the Council of State. Strip your specifications of clauses allowing BAFOs by email — or know that they are prima facie contrary to Art. 14 § 7 of the 2016 Public Procurement Act and that you are saved only if the final bidder has no interest. For bid managers with a 'clever' price plan: read the bid form and price formula word for word before building your strategy. If the specifications provide that the monthly maintenance price is multiplied by a fixed number (36, 24, whatever), that number determines how your monthly price weighs on the price criterion — not the actual period during which you will invoice that price. Fast delivery only earns extra points on the separate timing criterion, not on price. For challenging an award decision: a higher amount in the decision than in the price formula is a defect of motivation, rarely a ground for annulment. Focus your ground on the amount that actually influenced the scoring.
Ask yourself
Three checks before submitting a tender in a competitive procedure with negotiation. (1) Does the specification contain a clause allowing BAFOs by email? Mark it — when challenged it is a prima facie breach of Art. 14 § 7. (2) Does the price formula contain a fixed multiplier for monthly costs (36, 24, other)? Build your price strategy on that multiplier, not on your own expected execution period. (3) Does the 'total award amount' in the reasoned award decision match the amount on which the price points were calculated? A difference is a red flag, but the Council of State takes it seriously only if it has also influenced the scoring.
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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 →