Annulment of concession award for Memorial 1815 due to errors in catering assessment and unequal treatment in offer comparison
The Council of State annuls the decision of the Intercommunale Bataille de Waterloo 1815 to award the service concession for the operation of the Memorial of the Battle of Waterloo to Kléber Rossillon, because the assessment of the catering plan was based on factually incorrect data (500 covers per day instead of the 371 stated in the offer) and because the comparison of offers regarding Dutch-speaking market development and the definition of 'cover' was conducted unequally.
What happened?
The Intercommunale Bataille de Waterloo 1815 (IBW 1815) launched a service concession for the overall operation of the Memorial of the Battle of Waterloo — the Lion of Waterloo complex with museum, panorama, catering facilities and event spaces on the 1815 battlefield. The existing concession was held by SA Tempora, which had operated the Memorial since its reopening in 2013-2015. After a market consultation, IBW 1815 launched a new concession procedure in 2022 with three award criteria: relevance of the business plan (50 points), royalty (25 points) and experience (25 points). Two candidates submitted offers: Tempora (the incumbent concessionaire) and a consortium led by SAS Kléber Rossillon, a French company specialising in the operation of historic monuments. After evaluation, Kléber Rossillon received the highest score and on 28 April 2023 the board of directors of IBW 1815 decided to award the concession to Kléber Rossillon. Tempora challenged this award decision before the Council of State. In the first plea, first branch, Tempora argued that the assessment of Kléber Rossillon's catering plan was based on factually incorrect grounds. The evaluation report stated that Kléber Rossillon provided a capacity of 500 covers per day, whereas Kléber Rossillon's own offer mentioned 371 covers per day. This discrepancy was not explained. Furthermore, the evaluation committee labelled Kléber Rossillon's catering plan as 'imbalanced' by subtracting catering costs from catering revenue, but did not apply the same method to costs from other activities — an inconsistent calculation. The Council found the evaluation report inadequately reasoned on this point: the figure of 500 covers did not come from the offer and was unsubstantiated, and the conclusion about the 'imbalance' rested on an incomplete comparison. In the first plea, second branch, Tempora established a violation of the principle of equal treatment in the comparison of offers. First, Kléber Rossillon was positively assessed for its intention to develop the Dutch-speaking market, while Tempora — which had included the same commitment in its offer — received no credit for this. The evaluation committee should have treated both offers equally on this point. Second, the two tenderers used different definitions of 'cover' (Tempora counted menus including drinks, Kléber Rossillon counted meals only excluding drinks), making the figures not directly comparable. The evaluation committee failed to recognise this difference and compared the offers without correction, rendering the comparison unreliable. The Council concluded that the evaluation errors undermined the comparability of the offers and that the award decision was insufficiently reasoned. The decision to award the concession to Kléber Rossillon was annulled.
Why does this matter?
This ruling demonstrates that the Council of State strictly scrutinises the factual accuracy and internal consistency of evaluation reports, including for service concessions. When an evaluation committee uses figures that do not come from the offer (here: 500 covers instead of 371), or compares offers using non-comparable metrics (different definitions of 'cover'), this undermines the reliability of the entire assessment. The principle of equal treatment further requires that identical elements in both offers be valued in the same way: if one tenderer receives credit for a particular commitment, the other tenderer offering the same commitment must also be rewarded for it.
The lesson
Ensure that every figure in the evaluation report is traceable to the offer. Do not use numbers that do not come from the offer itself without providing reasons. When tenderers use different definitions or calculation methods for the same concept (such as 'cover' or 'turnover'), the evaluation committee must first identify this difference and normalise the data before comparing the offers. Assess similar commitments in both offers in the same way — whoever rewards one tenderer for market development must do the same for the other offering the same commitment.
Ask yourself
As contracting authority: are all figures in my evaluation report traceable to the offers? When comparing offers, have I taken into account any differences in definitions or calculation methods? Have I assessed similar commitments from different tenderers in the same way? As tenderer: can I demonstrate that the assessment of my offer was based on factually incorrect data, or that my competitor was assessed differently for the same element?
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 →