A meal voucher priced at zero: Actiris dropped its own scoring formula and the Council of State annuls the award to Edenred
Actiris awarded the contract for its staff’s meal and gift vouchers to Edenred, but because Monizze had bid a price of zero euros and the scoring formula imposed by the specifications could not be applied to it, Actiris simply gave both bidders the maximum score for the price criterion — thereby, the Council of State holds, breaching its own specifications, the principle of transparency and equal treatment, so that the award was annulled.
What happened?
Actiris, the Brussels regional employment service, launched a public supplies contract for the ‘monthly meal vouchers and gift vouchers for Actiris staff’. By a decision of 17 May 2025 it awarded the contract to Edenred Belgium rather than to Monizze. Monizze first sought suspension under extreme urgency and succeeded: by judgment no. 263.800 of 27 June 2025 the Council of State suspended the award and admitted Edenred’s intervention. Because neither Actiris nor Edenred requested the continuation of the proceedings within thirty days, the Council could annul the suspended decision through the accelerated procedure of article 17, § 9, if the already serious first plea also proved founded. The heart of the case was the price criterion. The specifications imposed a mathematical scoring formula for the prices, with a maximum of 35 points. Monizze, however, had bid a price of zero euros — a common occurrence in the meal-voucher market — while Edenred asked 0.01 euros. With a zero price the imposed formula could not be applied. Instead of applying its own method, Actiris departed from it and gave both bidders the full 35 points for the price criterion, saying it did so to respect equality and given the great closeness of the two prices. Actiris and Edenred argued that Monizze had no interest: by bidding zero it had made its own offer incomparable — even irregular — and the only regular outcome (declaring its offer substantially irregular) would have been even more harmful to it; moreover twelve points separated the offers on the other criteria. The Council rejected that objection: Actiris had expressly declared both offers regular, and it is not for the Council to find an offer irregular where the authority itself did not so qualify it. Monizze, which had bid the lowest price, could prima facie have been harmed by the alleged illegality, since it could have affected the final ranking and the award itself; the plea — and thus the action — was admissible. On the merits, the Council repeated the reasons of the suspension judgment. The principle of transparency (article 81 of the law of 17 June 2016) requires that the award criteria be set out clearly, precisely and unequivocally in the contract documents, and that the authority observe those criteria when assessing the offers. It is not for the Council to determine what decision Actiris should have taken when faced with a zero price that made the imposed method unusable; it can only review the legality of the decision actually taken. And that decision did not apply the scoring method prescribed by the specifications — which Actiris and Edenred did not contest. The fact that it was mathematically impossible to apply that method did not release Actiris from its obligation to comply with the law and its underlying principles. Moreover, the method actually chosen gave the same number of points to two offers with different prices: it thus distorted the price criterion by failing to favour the most advantageous price, contrary to the equal treatment of bidders. The first plea was founded. Applying article 17, § 9, and article 11/2 of the general procedural rules, the Council annulled the award decision of 17 May 2025. Monizze had not sought a procedural indemnity; Actiris bears the roll fee of 200 euros and the contribution of 26 euros, and Edenred the 150-euro fee attached to its intervention.
Why does this matter?
This judgment touches a recurring, concrete problem: what does an authority do when a bidder offers a price of zero and the scoring formula imposed by the specifications does not work for it? The Council’s answer is one of principle. An authority may not simply set aside its own, pre-announced assessment method because it breaks down in practice; the principle patere legem quam ipse fecisti and the principle of transparency oblige it to comply with the rules it has itself laid down. The ‘solution’ of then giving both bidders the maximum score is not a neutral way out: it gives two different prices the same points and so undermines the very purpose of the price criterion, namely to reward the cheapest offer. Equally important is the procedural angle: once the authority has declared an offer regular, it cannot, in the proceedings before the Council, hide behind the claim that the offer was ‘really’ irregular; the Council does not substitute itself for the authority to disqualify an offer after the fact. Finally, the judgment shows how the accelerated procedure of article 17, § 9, works: a party who does not request the continuation of the proceedings after a suspension risks having the suspended decision annulled without further debate.
The lesson
For authorities: choose a price formula that also holds up in the reality of the market concerned. In sectors where zero prices are common — such as meal vouchers, where the issuer earns its margin elsewhere — a formula that breaks down at a price of zero is a design flaw. If your method does break down, remember that you may not unilaterally replace it by scoring both bidders equally: that voids the price criterion and breaches equality. If you want to exclude a zero price, do so transparently in the specifications beforehand, not afterwards. And bear in mind: once you have declared an offer regular, you cannot reverse that finding in the proceedings before the Council. For bidders: a last place or a small points gap does not rule out a successful action where the contested error concerns a weighty criterion such as price. React quickly — the extreme-urgency suspension was the lever here — and know that the opposing party who does not request continuation after the suspension brings the accelerated annulment upon itself.
Ask yourself
Have you, as an authority, tested whether your price formula works at the prices that are realistic in your market, including a price of zero? Do you realise that you may not unilaterally replace your own announced assessment method when it breaks down, and that giving two different prices the same score voids the price criterion? If you want to exclude a zero price, have you arranged that clearly and beforehand in the specifications instead of improvising afterwards? And as a bidder: do you know that a challenge to the price criterion remains admissible, even with a points gap, and that the accelerated procedure of article 17, § 9, can annul the suspended award where the opposing party does not request continuation?
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 →