Suspension request rejected in extreme urgency: price comparison including authorized options and qualitative evaluation without manifest error — financial market surveillance contract awarded to Smarts Nasdaq
Features Analytics' suspension request against the award to Smarts Nasdaq of the financial market surveillance solution for the FSMA is rejected — the single plea is not serious: price comparison based on total price including authorized options complies with the equality principle, and qualitative evaluation reveals no manifest error of appreciation.
What happened?
The FSMA launched a competitive procedure with negotiation for a financial market surveillance solution. Three tenderers submitted BAFOs. The contract was awarded to Smarts Nasdaq. Features Analytics, ranked second, sought suspension. The Council of State rejected all complaints. On price comparison: although article 87 AR 2017 does not apply to competitive procedures with negotiation, the equality principle requires considering authorized options. On quality evaluation: the six-page analysis in the award report is sufficient; 'correct' visualizations can be a 'weak point' compared to 'powerful' competitor visualizations; the AI/ML component is an enhancement, not a remedy. Observations submitted after closure of debates were not admitted.
Why does this matter?
This ruling clarifies that in competitive procedures with negotiation, price comparison must include authorized options even though article 87 AR 2017 does not apply. The award report need not detail every functionality if the conclusion shows comprehensive examination. Comparative assessments do not constitute contradictions.
The lesson
As contracting authority: compare offers including all authorized options. Formulate comparative assessments to justify score differences. As tenderer: substantiate complaints with concrete evidence of manifest error and verify that legal provisions invoked apply to the procedure used. Present all arguments at the hearing.
Ask yourself
As contracting authority, did I compare offers including all authorized options? Does my award report show comprehensive examination? As tenderer, are my complaints substantiated with concrete evidence?
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 →