Promising less means bidding cheaper — yet still the top price score: Ieper suspended over a bar that closed at 1am instead of 3am
The Council of State suspends, under extreme urgency, the award for organising the 'Ieper Awards 2026' because the winning bid provided drinks service only until 1am instead of the 3am required by the specifications, yet still received the maximum score on the price criterion, without the City ever recording that deviation as an irregularity or explaining why it did not affect the comparability of the bids.
What happened?
The City of Ieper launched a services contract, via a negotiated procedure without prior publication (article 89, § 1, 2° of the Act of 17 June 2016), for organising the 'Ieper Awards 2026' — a gala event on 26 October 2026 for 550 to 700 guests. The available budget was a maximum of €50,000 excl. VAT in fixed costs and €110 excl. VAT per person in variable (catering) costs. Three firms were invited and three submitted bids, including the applicant. Two of the award criteria concerned the catering: 'Catering concept' (20 points) and 'Catering price' (20 points). The specifications expressly required that 'quality drinks be served from 19:30 on 26/10/2026 until 03:00 on 27/10/2026', and that the catering price had to cover that service up to 03:00. In the evaluation report of 20 March 2026 all three bids were found regular — expressly 'neither substantial nor non-substantial irregularities' — and the final ranking was: bv C. 86%, the applicant 85%, a third bidder 82%. The contract went to bv C. on 23 March 2026. The crux: bv C.'s bid provided service only until 01:00, not 03:00. In the catering concept this was noted as a downside (18 points against 20 for the applicant), but for the 'Catering price' criterion bv C. nonetheless received the maximum of 20 points, against 19 for the applicant — even though that price precisely did not account for the service and staffing between 01:00 and 03:00 that the two other bidders had costed in. The applicant went to the Council of State under extreme urgency; the auditor still gave a contrary (dismissive) opinion, but the Council did not follow it. Two admissibility objections by the City — an alleged lack of interest because of the applicant's social and tax debts, and the reproach that the applicant itself did not meet all specifications — were rejected, partly because the City had itself selected the applicant in the evaluation with the note 'OK' and had recorded none of the alleged defects in the contested decision. On the merits, the Council found that nowhere in the evaluation report did it appear that the City had noticed bv C.'s deviation — on the contrary, the report expressly declared the bid regular. The City simply stepped over the deviation. A lower score on the catering concept did not suffice: service until 03:00 was not incidental but went directly to the scope of the service, the staffing and the price, so that a bid serving only until 01:00 deviated on an element that directly affects the economic and functional comparability of the bids. By including that bid in the comparison without examination, and even awarding it the maximum price score, the motivation fell short (formally and materially) and equality among bidders was compromised. The single ground was found serious and the implementation of the award decision suspended.
Why does this matter?
For bid managers who lose a contract to a competitor who is cheaper on paper: check whether that lower price actually covers the same performance. A bidder offering a smaller scope — shorter service hours, fewer line items, a lighter delivery — can logically quote a lower price and thereby gain a competitive advantage. If the contracting authority nonetheless fully counts that reduced performance in a price criterion, and records the deviation nowhere as an irregularity nor explains why it does not affect comparability, you have a serious ground for suspension. For contracting authorities: you may not silently 'absorb' a deviation from the specifications into a quality score. You must first qualify it legally — substantial or non-substantial irregularity? rejection or regularisation? — and if you consider the bid regular despite the deviation, you must expressly state why it does not affect equal comparison. A price criterion may not award the maximum score to a bid that prices a smaller performance than the specifications require.
The lesson
A deviation that affects the scope of the performance, and thus the price, is not fixed by docking points elsewhere. When drafting an award decision: as soon as you find that a bid offers less than the specifications require (shorter hours, missing items), you must choose and put it on paper. Either you find that an essential requirement was not met, with the consequences for the regularity of the bid. Or you expressly state why the deviation does not affect comparability and why regularisation was not needed. What you cannot do: note the deviation as a downside under one criterion while neutralising it under the price criterion by awarding the maximum score there anyway. That internal contradiction invites a suspension.
Ask yourself
Take an award decision in which the winner scored on price. Do all bids contain exactly the same performance, or does the cheapest offer less (shorter duration, less staffing, missing items)? If there is a difference: does the evaluation report state where that difference was identified, how it was qualified, and why it does not distort the price comparison? If that motivation is missing — and the bid was simultaneously given the maximum price score — the decision will not survive an extreme-urgency suspension.
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 →