Two different references, two identical scores: that needs an explanation
The Council of State suspends the award because Idelux gave the same 5/5 score to a 134-seat reference and a 156-seat reference without any explanation — and because a different score on that single sub-sub-criterion was just enough to flip the ranking.
What happened?
Idelux Développement, the economic-development inter-municipal authority for the Province of Luxembourg, ran a procurement for an architect-designer for a planetarium at the Euro Space Center site in Transinne. The specifications described the expected planetarium as '10K – 3D – 150 people' and required a 500 m² building 'to accommodate up to 150 visitors'. Four offers were submitted; on 8 September 2023, the contract went to SCRL Alinéa Ter. SRL Nové Architectes came second with 90.5 points against 93.78 — a 3.28-point gap. The first award criterion ('Expertise in planetariums or audiovisual rooms', 30 points) was split into two sub-criteria of 15 points each, and the 'complexity' sub-criterion was further split into three 5-point items: '10K', '3D' and 'up to 150 seats'. The critical data: Nové submitted a 156-seat planetarium reference; Alinéa Ter submitted 'La Coupole', a 134-seat planetarium. Both received 5/5 on 'up to 150 seats'. The full motivation in the analysis report for that sub-criterion: 'More points are awarded to references involving planetariums rather than audiovisual rooms. Audiovisual rooms get 50 % of the points.' That explains why a planetarium scores higher than an audiovisual room — but it doesn't explain why 134 and 156 score identically. In its observations note Idelux tried to add an explanation: 134 was 'close enough' to the target of 150. The Council of State called that 'a posteriori motivation' that cannot fix what was undefined in the award decision itself. Idelux also tried to argue that the difference wouldn't change the ranking: with a 'rule of three' (134/150 of the maximum), the order would still hold. The Court rejected that too: there's no 'rule of three' in the specifications — it was being invented after the fact. With 5 points at stake and a 3.28-point gap, the ranking could plausibly flip. Second branch of the plea: serious. Suspension granted. (The first branch — about splitting the criterion into sub-criteria — was not held to be serious because the wording with 'ainsi que' reasonably allowed two sub-criteria.)
Why does this matter?
For contracting authorities: you cannot just choose a methodology — you must also explain in the award decision itself why different references receive the same or different scores. A blanket sentence like 'planetariums score higher than audiovisual rooms' is not enough motivation when both references are planetariums. For bidders: this is a useful lens to revisit a losing offer. Did the contracting authority motivate each sub-sub-criterion separately? Did two distinct references receive the same score with no explanation? Was the gap between you and the winner smaller than a single criterion's maximum? Then you have a real basis to challenge.
The lesson
If your award decision gives two references the same score on a specific criterion despite measurable differences — 134 vs 156 seats, 8 vs 12 references, 18 vs 24 months of experience — you must explain in the decision why. 'Both meet the criterion' is not enough when the difference is visible. Adding the explanation in the observations note doesn't fix it: the Council of State assesses the motivation as it stood when the decision was made.
Ask yourself
Review your last award decision. For each sub-sub-criterion with a points scale: did the report explain why bidder A and bidder B got their specific scores — or does it just say 'meets' / 'meets very well'? Compare two bidders with measurably different references: do they end up with the same score? Then your motivation must explain why the difference doesn't matter to 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 →