Suspension granted: Hamois CPAS may not exclude mandatory options for energy renovation from tender evaluation without prior warning – equality and transparency principles violated as tenderers were not informed in time that options would be disregarded
The Council of State suspended under extreme urgency the award by the Hamois CPAS of a works contract for energy renovation of six adapted dwellings to SRL Denis, because after the negotiations and submission of BAFOs the CPAS decided to disregard the three mandatory options (triple glazing, bio-sourced insulation, and single-flow ventilation) required by the specifications without prior notice to the tenderers — thereby violating the equality and transparency principles, as this choice altered the ranking and RENO.ENERGY would have ranked first if the options had been taken into account.
What happened?
The Hamois CPAS launched a works contract through a negotiated procedure with prior publication for energy renovation of six adapted dwellings. The specifications required three mandatory options: triple glazing, bio-sourced insulation, and single-flow ventilation. Three tenderers submitted initial offers; two submitted BAFOs. After the BAFOs, the CPAS decided not to exercise the three options and excluded them from the evaluation, motivated by technical and economic arguments. Offers were compared without options: Denis scored 98, RENO.ENERGY 96. However, including options would have reversed the ranking: RENO.ENERGY's total price with options (€520,330) was lower than Denis's (€534,053). The Council held that the mandatory options were in reality variants, and whether options or variants, the contracting authority could not exclude them from evaluation without prior warning. Article 56 §4 (no obligation to exercise options) does not permit arbitrary exclusion of mandatory options from evaluation in violation of equality and transparency principles. The authority should have either indicated in the documents that options were 'detachable' or warned tenderers during negotiations. The budget was sufficient for award including options. The ground was serious and the balance of interests favoured suspension.
Why does this matter?
This ruling clarifies that the right not to exercise options does not allow arbitrary exclusion of mandatory options from tender evaluation without prior notice. To avoid discrimination, the authority must either provide for 'detachable' options in the documents or warn tenderers during negotiations before BAFO submission. The equality and transparency principles apply even in negotiated procedures.
The lesson
As a contracting authority, if you include mandatory options but consider not exercising them, make this clear in advance — either in the tender documents or during negotiations before BAFOs. Do not exclude mandatory options after BAFOs without warning, especially when this changes the ranking. As a tenderer, check whether the specifications allow separate evaluation of options and seek clarification during negotiations.
Ask yourself
As a contracting authority: have you included mandatory options? Are you considering not exercising them? Have you informed tenderers in advance? Would excluding options change the ranking? As a tenderer: are you aware that the authority might not exercise mandatory options? Have you optimised your offer for both scenarios?
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 →