Duffel fire station: 75 against 75, and then the cheapest wins — the Council holds the architect to the ranking method that was in the specification
For the design of Duffel’s new fire station, Archiles Architectenbureau (best concept note, fee 8.45 %) and Antwerps Architecten Atelier (fee 5.90 %) both finished on 75/100, after which price decided as the specification provided; the Council of State rejected all the loser’s objections — to ranking by position rather than by actual price differences, to the absence of a cost estimate in the winning bid and to the failure to query a fee far below the 7.50 % estimate — because the municipality had merely done what its own specification announced and the winning bid already contained a price justification.
What happened?
In October 2008 the municipality of Duffel sought, through a restricted call for tenders published at European level, a designer for its new fire station along the Spoorweglaan: study, design, supervision of the works and safety coordination up to final acceptance. Specification D.08.05 used two award criteria of 50 % each: a concept note on approach and methodology, and the fee, to be stated as a single fixed percentage of the actual cost of the works excluding VAT. Points were allocated by rank: with four regular bids the best received 40 points, the second 30, the third 20 and the fourth 10, then converted to the 50 % weighting. In the event of a tie, the score on the last criterion, price, would decide. The municipal council had estimated the fee at 7.50 %. Six candidates applied, four were selected and submitted bids on 25 March 2009: Architectenteam A (8.99 %), Archiles Architectenbureau (8.45 %), Architectenbureau Boeckx & Partners (8.40 %) and Antwerps Architecten Atelier (5.90 %). The award report of 24 June 2009 gave Archiles the best concept note (50/50) but only 25/50 on price, and Antwerps Architecten Atelier 25/50 on the concept note but 50/50 on price: both 75/100, the other two 50/100. On 30 June 2009 the college awarded the contract to Antwerps Architecten Atelier at a fixed fee of 5.90 %. An application for suspension under extreme urgency was already dismissed on 11 August 2009 (judgment no. 195.529); the annulment action followed on 4 September 2009. In a first plea Archiles argued that the municipality had scored out of 50 rather than 40, that price may not be decisive in a call for tenders, and above all that the linear ranking produced a disproportionate result: a fee difference of a mere 0.05 % with Boeckx & Partners cost it 12.5 points out of 50, whereas a ‘rule of three’ would have reflected the actual price differences and ranked it first. In a second plea it argued that the winning bid was irregular because it did not link the percentage to an estimated cost of the works, and that the municipality should at least have queried the strikingly low fee of 5.90 % — below the estimate, below the other bidders and below the professional norm — or explained why it did not. The Council of State rejected everything. The first two parts had already been found not serious in the urgency judgment; the award report merely skipped the intermediate step out of 40 and converted the ranking directly to 50 %, and nothing prevents a contracting authority from letting price decide in the event of a tie. Archiles had, moreover, offered nothing against this in its final pleading and merely referred to its application. On disproportionality the Council held that the municipality had itself limited its discretion by announcing the linear method in the specification; a party that attacks only the result and not the method itself cannot succeed, because patere legem obliges the municipality precisely to apply its own specification. Moreover, 50/50 for 5.90 % against 25/50 for 8.45 % was not manifestly disproportionate. No provision of the specification required a bidder to state its own cost estimate; an unsubstantiated ‘established practice in architecture’ did not suffice. And as to the low fee: an authority that does not reject a bid on account of abnormal prices need not request a price justification, although it must verify regularity. The percentage deviated only to a limited extent from the merely advisory professional norm, and the confidentially filed bid of Antwerps Architecten Atelier already contained a note ‘justification and key strengths of AAA cvba’, citing among other things the in-house performance of safety coordination and the energy performance audit as the explanation for its lower price. The refocusing on the formal duty to state reasons in the final pleading was belated. Archiles paid 175 euros in costs, the intervening party 125 euros for its intervention.
Why does this matter?
This judgment concerns a choice every contracting authority makes and rarely thinks through: how do you convert price differences into points? Duffel chose ranking — the cheapest gets the maximum, the second a fixed step lower, and so on — which makes the distance between bids irrelevant. A fee difference of 0.05 % weighed as heavily as a difference of 2.5 %. Archiles called that disproportionate, and arithmetically it had a point. But the Council of State did not look at the arithmetic; it looked at the specification. A bidder that accepts the method by submitting a bid, and attacks it only after the award through its result, runs into the principle patere legem quam ipse fecisti — which here works in the authority’s favour, because it obliged the municipality precisely to apply its announced method. The lesson lies in the timing and the object of the criticism: you contest an assessment method before submission, or you contest the method itself, not merely its outcome. The judgment also says something important about low fees. A percentage of 5.90 % against an estimate of 7.50 % and competitors around 8.4 to 9 % is striking, and yet nothing obliged the municipality to request a price justification: that obligation arises only when the authority wishes to reject the bid on account of abnormal prices. What remains is the duty to verify regularity — and that was fulfilled here because the winning bid itself explained why it could be cheaper. That is a practical pointer for bidders who want to bid sharply: explain your price in the bid up front, and nobody will need to ask. Finally, the judgment illustrates how an annulment action can bleed out after a lost urgency application: three of the five parts of the pleas had already been found not serious in the urgency judgment, and in its final pleading Archiles did not respond to the auditor’s report but merely referred to its application. The Council took note, each time anew.
The lesson
For bidders: read the ranking method in the specification as part of the rules of the game. If the specification awards points by rank, only your position counts, not how close you are to the winner; a bidder half a percent too expensive loses as much as one two percent too expensive. If you find that unreasonable, ask questions during the procedure or challenge the method itself — attacking only the result after the award does not work. If you bid sharply, write in your bid why you can (in-house safety coordination, in-house energy audit, economies of scale): a built-in price justification makes a request for justification unnecessary and protects your award. In the annulment procedure, do not re-run pleas already found not serious in the urgency judgment without new arguments, and respond to the auditor’s report instead of referring back to your application. For contracting authorities: a ranking method is permitted and defensible, but be aware that it may decide a tie and that it magnifies small price differences; announce it clearly and apply it exactly, intermediate steps included, so that nobody can say you scored out of 50 where the specification said 40. You need not query a low price if you do not intend to reject the bid, but record in the file why you consider the price regular — here the note in the winning bid saved the municipality.
Ask yourself
Before bidding, do you know whether the specification scores price by rank or by actual differences, and have you adapted your pricing strategy accordingly? Does your bid already explain why you can be cheaper than the market, so that an authority can account for your price as regular without querying you? If you find an assessment method unreasonable: are you challenging the method itself, and in time, or only its outcome after losing? As a contracting authority: can you show that you applied the ranking exactly as the specification provided, intermediate steps included, and does your file record why you nevertheless considered a strikingly low price regular? And does your specification require an architect to state a cost estimate to which the fee relates — or do you tacitly assume that ‘practice’ takes care of that?
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 →