BAFO 'for better prices': the authority may skip feedback — your only bid is your only bid
The Council of State confirms that a contracting authority in a competitive procedure with negotiation may perfectly choose to give no feedback on initial offers and to request only a BAFO 'for better prices', even when one bidder scores much higher on quality and the other on price — 'negotiation' is not a second chance to rewrite your offer.
What happened?
University Hospital Ghent (UZ Gent) sought a framework agreement for insurance broker services through a competitive procedure with negotiation, estimated at €360,000 max over four years. The first procurement in 2023 had been stopped due to unclear specifications. Early 2024, the contract was retendered with three award criteria: price (45 points), experience with policy review and drafting specifications for public bodies (35 points), and phasing/methodology (20 points). Three candidates were selected; two submitted bids: AON Belgium and V.R. UZ Gent explicitly reserved the right to award based on initial offers without negotiation. The contrast in initial scores was sharp: AON had a very low price (around €55,000 → max 45 points) but weak quality scores (14/35 and 13/20). V.R. had a much higher price (€112,000 → 22.1 points) but maximum quality scores (35/35 and 18/20). After a clarification request to all bidders about the total hours estimate, UZ Gent sent a letter on 13 May 2024 to all three with one instruction: submit a BAFO by 21 May 'with a view to obtaining better prices', along with 'the most recent version of all documents requested in the specifications'. No content feedback, no bilateral talks, no indication of strong or weak points. Both bidders submitted a BAFO: AON dropped to €200,000, V.R. to €388,000. Final scores: V.R. 76.2 points (€388,000); AON 72 points (€200,000). On 26 June 2024, UZ Gent awarded to V.R. for four years at €388,000. AON filed an extreme urgency challenge on 12 July with a single plea covering violations of article 38 of the Public Procurement Act 2016, the equality principle, transparency, patere legem and formal motivation. The core argument: the authority had to negotiate over content and give feedback before requesting a BAFO; only asking for 'better prices' discriminated against AON because V.R. had much more margin to improve on price than AON did. The Council of State rejected everything. Article 38 §5 grants significant discretion to the authority on which aspects of the offer are subject to negotiation. The Council found no obligation for qualitative feedback or content negotiation. Crucially: negotiations are NOT a 'second chance' for bidders who did not initially submit the most advantageous offer. Article 38 §4 explicitly states that the first offer is 'the basis' for further negotiations — a BAFO with a totally different quality profile is therefore not obvious. Since UZ Gent had reserved the right to award without negotiation, every bidder had to submit 'the best possible offer' from the start. On equality: all three bidders received the same process — simultaneous selection, simultaneous clarification request, no feedback to anyone, simultaneous BAFO invitation with identical text and equal time. That V.R. had more improvement margin on price than AON flows from the content of the initial offers themselves. Nothing prevented AON from also improving its quality submission — the BAFO letter asked for 'the most recent version of all documents requested in the specifications'. Rejection, AON ordered to pay costs (€200 roll fee + €770 procedural indemnity + €24 contribution) and V.R. €150 roll fee for the intervention.
Why does this matter?
This ruling is a hard lesson for anyone operating in a competitive procedure with negotiation — both bidders and authorities. For bidders: although the procedure is called 'with negotiation', article 38 §5 gives the contracting authority the freedom to decide on what it negotiates. If the specifications state that the authority reserves the right to award without negotiation, you must submit your absolute best product from your first offer. A weak first offer hoping 'we'll see during negotiations' is a fatal strategy. For authorities: this ruling confirms that you are not obliged to give feedback, not obliged to negotiate on content, and can perfectly say 'give me your best price'. The condition is that your process is strictly identical for all bidders. The myth that 'negotiation = feedback + second chance' is punctured here.
The lesson
As a bidder in a competitive procedure with negotiation: submit your absolute best proposal from your first offer — especially when the specifications allow the authority to award without negotiation. Do not count on being able to correct your weaknesses during negotiations. Second: if you receive a BAFO letter asking for 'better prices', check whether you can also upgrade your qualitative part — this is usually not forbidden. As contracting authority: if you request a BAFO 'for better prices', do it for all bidders simultaneously, with the same text and deadline, without feedback to anyone. Document this well.
Ask yourself
As bidder in a competitive procedure with negotiation: have you checked your specifications for the phrase 'the contracting authority reserves the right to award based on initial offers'? If yes: do you know that your first offer may be your only chance? If you receive a BAFO request mentioning only 'better prices': do you still upload your updated qualitative documents? As contracting authority: do you send your BAFO letter to all bidders simultaneously? Use identical text? Avoid feedback to any specific bidder about strengths and weaknesses?
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 →