Listing a row of guarantees is not a quality assessment — Ninove loses an €86,000 contract because it didn't actually compare
The Council of State annuls — through the accelerated procedure in which the City of Ninove did not even request continuation — the award of playground equipment for the Meerbeke playground because the evaluation report only descriptively listed what each bidder offered, without truly comparing offers on award criterion 3.
What happened?
In 2024 the City of Ninove launched a supply contract for playground equipment for the Meerbeke playground at Kwadestraat-Zuid. On 14 October 2024 the contract went to a third bidder for €86,251.22 incl. VAT. The rejected bidder filed an annulment appeal on 16 December 2024. The substantive ground: defective evaluation of award criterion 3 'quality of materials', breaching both formal and material duty to state reasons and the duty of care. On 20 November 2025 the auditor proposed annulment. Under article 30, §3 of the Council of State Acts and article 14quinquies of the Regent's Decree: if the auditor concludes to annulment and no party requests continuation within 30 days, the Council may apply the accelerated procedure. On 3 February 2026 the 14quinquies notice went to the City. Ninove did NOT file a continuation request — an implicit acknowledgement that the motivation was indeed flawed. The substantive complaint: in its evaluation report Ninove limited itself to a 'descriptive listing' of each bidder's guarantees, followed by a quantitative score. But that motivation did not show that the City had actually carried out an 'substantive and comparative assessment' of what each bid offered. A 'concrete material evaluation and comparison of what was offered' was missing. Additional point: the descriptive description in the evaluation report on several points did not match what was in the winning bidder's offer (page 37 showed a thorough breakdown of guarantee conditions that was incorrectly transcribed in the report). That is double breach: defective motivation plus motivation based on incorrect data — breach of duty of care. The Council fully follows the auditor's report, the single ground is upheld, annulment pronounced. Ninove pays costs: court fee €200, contribution €24, procedural indemnity €770.
Why does this matter?
For bid managers: if you receive an evaluation report where a qualitative criterion only lists what each bidder offered — without the authority explaining why one offer is qualitatively better than another — you have a ground for annulment. For contracting authorities: a descriptive overview is not an assessment. For each qualitative criterion you must explicitly compare (why A is better than B), not merely describe. And if on substantial items (such as guarantee conditions) details in your report do not match what is in the bid itself, you also have a duty-of-care problem on top of the motivation problem.
The lesson
When drafting an evaluation report for a contract with qualitative criteria: for each criterion you should be able to write three sentences. One describing what bidder A offers. One describing what bidder B offers. And one explaining why one scores higher or lower than the other — with reference to concrete elements in the bids. That third sentence is what saves or sinks you. And double-check that the factual details in your report (guarantee periods, specifications) actually match the bid itself.
Ask yourself
Take the last evaluation report you wrote or received. Find the qualitative criterion that made the biggest difference in the final ranking. Read the text: is there explicit comparison ('A offers X, B offers Y, A scores higher because Z'), or only 'A offers X, scores N points; B offers Y, scores M points'? The second pattern is the Ninove mistake and will not survive an annulment appeal.
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 →