Nandrin insurance award annulled: asymmetric negotiations — only Ethias invited to submit BAFO, not P&V
Annulment: the award of Nandrin's insurance contract to Ethias is annulled — the administrative file contains no evidence that P&V Assurances was offered the same opportunities to improve its offer as Ethias, which was formally invited to negotiate and submit a BAFO, in violation of the equal treatment principle.
What happened?
The municipality of Nandrin launched a service contract for various insurance policies (property damage, civil liability, work accidents, vehicles), for one year renewable once, via negotiated procedure without prior publication. Award criteria were price (50 points), services included (45 points), and improved guarantees (5 points). Five insurers were invited but only P&V Assurances and Ethias submitted offers (April 2019). On 10 July 2019, a meeting was held with P&V to present its offer and claims management platform. On 17 July 2019, a similar meeting was held with Ethias. On 18 July 2019, P&V sent an email with a 'corrected table' of guarantees, also answering a question about a professional reintegration plan for work accident victims. On 22 July 2019, the municipality sent Ethias — and only Ethias — a formal written invitation to negotiate improvements on four specific points: price, prevention plan assistance, reintegration plans, and annual policy review commitment. On 6 August 2019, another meeting was held with Ethias, concluded with an invitation to submit an improved offer. On 7 August 2019, Ethias submitted its BAFO (with 10% price discount). The evaluation report scored P&V at 89% (price EUR 31,721.52) and Ethias at 90% (price EUR 40,086.23). On 8 August 2019, the municipal college awarded to Ethias. P&V filed an annulment appeal on 1 October 2019. Ruling No. 245,398 (11 September 2019) suspended the award. The sole plea, first branch, is well-founded: the administrative file contains no evidence of the content of discussions with P&V; the municipality produced no letter inviting P&V to improve its offer while it did send such a letter to Ethias; P&V's 18 July 2019 email is not a BAFO but a corrected clarification table; the evaluation report mentions a BAFO for Ethias but not for P&V. The second branch (confidentiality breach) is not examined. The award decision is annulled. Costs charged to the contracting authority (court fees EUR 400, contributions EUR 40, procedural indemnity EUR 924).
Why does this matter?
This ruling demonstrates a rigorous application of the procedural equality principle in negotiated procedures: the contracting authority must offer each tenderer the same opportunities to improve its offer, and this equality must be evident from the administrative file. The absence of any documentary trace of an invitation to negotiate addressed to one tenderer, while such a letter exists for another, suffices to establish asymmetry. The contracting authority cannot fill gaps in the administrative file through inferences drawn from the uninvited tenderer's behaviour.
The lesson
As contracting authority: in a negotiated procedure, meticulously document every contact, every invitation to negotiate, and every improvement opportunity offered to each tenderer. Send written invitations to all tenderers — if you invite one to submit a BAFO, you must offer the same opportunity to the others. The administrative file must allow equal treatment to be traced. As tenderer: if you were not formally invited to improve your offer in a negotiated procedure, you have a serious ground for challenge.
Ask yourself
As contracting authority, did I send each tenderer a written invitation to improve its offer? Does my administrative file contain the documents showing the content of contacts with each tenderer? As tenderer, did I receive the same improvement opportunities as my competitors?
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 →