Confidentiality is no excuse to black out the assessment of the winner
The Council of State suspends an award because the contracting authority redacted nearly all of the winner's evaluation in the version of the award report given to the unsuccessful bidder, and only filed the unredacted version once court proceedings had started.
What happened?
The Flemish Roads Agency tendered a framework agreement for organising public participation in infrastructure projects. In lot 5 (West Flanders) four bids came in. Three were assessed on three award criteria: price (40 pts), proposed approach (35 pts) and team quality (25 pts). The final ranking was extremely tight: Levuur won with 75 points (17 + 34 + 24), Buro O2 came second with 74 (40 + 20 + 14) — a one-point gap. Buro O2 had the lowest price (full 40 points) but lost on quality. The Flemish Region awarded the contract to Levuur for €331,657.98 incl. VAT. Buro O2 went to the Council of State without a lawyer (the manager and a colleague pleaded themselves). Their core complaint: the award report they received had numerous passages about Levuur's assessment 'blacked out without it being clear why'. The Council of State confirms that the contracting authority had made 'almost the entire evaluation of the other bidders' offers' on the two qualitative criteria unreadable. The Flemish Region invoked Article 13 of the 17 June 2016 Act (protection of confidential information) — but then, after the suspension was filed, deposited the full unredacted award report in the administrative file. The Council of State doesn't accept it: a contracting authority may protect a winner's commercial secrets, but it cannot 'almost entirely shield from view its own substantive evaluation' from the other bidders. The duty to give reasons requires showing which strengths and weaknesses led to the choice. Buro O2 had to file its arguments without knowing how Levuur had been assessed relative to itself — which gutted its defence. Filing the full report later does not cure the breach. Suspension granted.
Why does this matter?
For bid managers this is a critical precedent: if you receive an award report where the winner's assessment is largely redacted, you have an independent ground for suspension — separate from any substantive criticism of the assessment itself. The Council of State expressly says: without sight of how the winner was evaluated, you cannot defend yourself, and that alone justifies suspension. For contracting authorities the message is clear: protecting business secrets in bids is one thing, but masking your own judgement in the evaluation report is another. What you wrote about the offers is not a 'manufacturing or trade secret'.
The lesson
If as an unsuccessful bidder you receive an award report with the winner's assessment heavily redacted, formally request an unredacted copy or a justification of the redactions. If you don't get one or it comes too late, you have a serious ground for suspension based on breach of the duty to give reasons. For contracting authorities: redact commercially sensitive figures and details from the winner's bid if you must, but leave your own evaluative commentary intact. Otherwise you cannot explain why you chose.
Ask yourself
Got an award report with more than a few lines of the winner's evaluation blacked out? Within the deadline, request an unredacted version or a substantiated explanation. If you don't receive it, you almost certainly have a basis for suspension.
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 →