Incumbent scores 18/20 on 'creativity', challenger 8/20 — yet no unfair advantage, says Council of State
The Council of State holds that a 10-point gap on 20 for 'creativity and originality' between the incumbent service provider and the challenger is not unlawful, because the tender documents explicitly asked for a moodboard 'based on the current magazine' and the existing publication was publicly available online to all bidders.
What happened?
The municipality of Zwalm tendered a framework agreement for the layout, printing and distribution of its bi-monthly public information magazine 'Zwalmse Post' (estimated at 52,700 euros excl. VAT), via a negotiated procedure without prior publication. Three bidders responded: the challenger BV D.A., the incumbent BV D.B. and a third bidder. Award criteria were price (30 points), quality (60) and environmental performance (10). Within 'quality', the subcriterion 'Creativity and originality' carried 20 points and required bidders to produce a moodboard 'based on the current magazine' plus three suggestions for new recurring sections. The incumbent scored 18/20 ('very good'), the third bidder 16/20 ('more than good'), the challenger 8/20 ('weak'). The incumbent won overall with 86.63 points. The challenger sought urgent suspension, arguing among other things that references to 'a clear feel for the existing style and tone of voice of the magazine' and 'alignment with the current concept' unlawfully favoured the incumbent. The 14th Chamber rejected all complaints. The decisive point: the specification explicitly required bidders to build their moodboard 'on the basis of the current magazine', and a digital version of that magazine was published on the municipal website — so every bidder had equal access to the reference material. The lower score did not stem from the challenger failing to match the existing concept, but from its new sections being deemed too close to existing ones and not attracting a new audience. Suspension refused, challenger ordered to pay costs.
Why does this matter?
Almost every service tender tied to an existing publication, website or brand identity creates the same tension: the incumbent knows the product inside out, the challenger has to study it. This ruling draws the line clearly: continuity may be a criterion as long as it is explicitly in the specification and the reference material is public. For challengers, this means that complaining after the fact will not succeed if you simply did not study the existing product carefully enough.
The lesson
If you are challenging an award where the incumbent scored higher on 'alignment with the existing', check two things first: does the specification explicitly ask for a proposal 'on the basis of' the existing product? And was that existing product accessible to every bidder? If the answer is yes to both, a suspension claim is unlikely to succeed. Redirect your energy to real asymmetries — non-public information, confidential know-how held only by the incumbent, or criteria that fall outside the specification.
Ask yourself
If your tender contains a subcriterion referring to 'existing style', 'current layout' or 'continuity with the current product': did you (a) explicitly state this is assessed, and (b) identify the reference material or make it available to all bidders? If not, you do run a genuine bias risk.
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 →