2.5 points short of the contract — but a party whose reply brief copies its own application word for word loses without a debate on the merits
Algemene Bouwonderneming Dillen finished second with 60 out of 100, behind Vanhout en Zonen (62.5), for the fitting-out of 18 Antwerp police stations, and challenged both the undisclosed weighting within the ‘approach plan’ criterion and the filling of missing unit prices with an average; the Council of State dismisses both branches — there is no obligation to announce that calculation method in advance, and Dillen nowhere explains how its interests were actually harmed — noting expressly that its reply brief reproduces the application word for word and even bears the same date.
What happened?
The city of Antwerp launched an open call for tenders for a multi-year call-off contract for a new fitting-out concept in 18 reception offices of the Antwerp local police, published on 13 April 2010. The contract comprised two lots; this case concerns only lot I, ‘fitting-out’. Specifications PO/2008/6018A provided for three award criteria: unit prices (50 points), approach plan (40 points) and a price proposal based on an actual bill of quantities, the Handelsstraat example (10 points). The ‘approach plan’ criterion asked contractors to demonstrate the added value they offered, listing three points of attention: their vision of the works (standardisation, pre-production, purchasing policy), added value in terms of relevant techniques and staff, and their approach to cooperation and coordination. Tenders were opened on 28 May 2010; seven bidders submitted for lot I. On unit prices Dillen came third at 184,603.28 euros, behind Karoo Interieurs (164,106.27) and Fr. Goedleven (173,030.68), while Vanhout en Zonen was only fourth at 216,646.38 — worth 25 points against 12.5. On the approach plan the ratio reversed: Vanhout scored 40 (‘a very strong and extensive approach plan with many concrete elements’), Dillen 30. On the third criterion Vanhout was cheapest (332,614.31 euros, 10 points) against Dillen (394,704.99 euros, 5 points). Final standings for lot I: Vanhout en Zonen 62.5, AB Dillen 60.0, Fr. Goedleven 60.0, Karoo Interieurs 50.0 and Buyse 17.5. The college awarded lot I to Vanhout en Zonen on 9 July 2010. Dillen was notified by registered letter of 12 July 2010; the annex missing from that letter — detailed table A, with the per-bidder assessment of the approach plan — followed on 14 July 2010. On 10 September 2010 Dillen sought annulment. Its single plea had two branches. First: the specifications did not explain how the ‘approach plan’ criterion would be assessed, whereas the award decision did, so that in its view more specific criteria had been applied than announced; moreover the relative weighting of the three assessment elements was ‘a riddle’. Second: under the first criterion, missing unit prices had been filled in with the average of the other bidders for the same item, and the ranking was made on the basis of the regular bidders — two methods the specifications did not mention. The procedural road was long: by judgment no. 222.358 of 1 February 2013 the general assembly of the Administrative Litigation Section reopened the debate, first auditor Jos Stevens produced a supplementary report, and the case was heard on 11 June 2013. The Council of State is notably sharp about the way Dillen conducted its case. Faced with the city’s extensive rejoinder, its reply brief reproduced ‘word for word the application, without in any way answering the detailed defence’ — and even bore the same date as the application. In its final brief, after an auditor’s report finding both branches unfounded, it added a single new sentence. On the merits, the Council finds no indication that the assessment applied other, more specific award criteria than those in the specifications; leaving aside whether these are sub-criteria, Dillen does not explain how the failure to publish the weighting of the three assessment elements actually harmed its interests as a bidder or breached equality between bidders. The contested decision is, moreover, extensively motivated in form and rests on substantive grounds clearly apparent from the administrative file. As to the second branch: no obligation appears to exist to announce in advance in the specifications how missing prices are to be calculated — at any rate Dillen does not identify any provision imposing one — so the conditions of the specifications were not altered; and here too it advances no concrete criticism of a possibly incorrect calculation of missing prices, whether in its own tender or in that of the successful or other bidders. Given the conduct of the litigation described, those considerations suffice to endorse the auditor’s position. The action is dismissed; Dillen is ordered to pay the costs, fixed at 175 euros.
Why does this matter?
This judgment is worth reading for two reasons, and the second is the least legal but the most valuable. On the merits it yields two usable findings. First: failing to publish in advance the relative weighting of the assessment elements within a single award criterion is not automatically unlawful. The Council expressly leaves open whether these are genuine sub-criteria — it never reaches the question, because the applicant nowhere explains how that silence concretely disadvantaged it. Second: filling gaps in a price list by taking the average of the other bidders for the same item is not subject to prior announcement in the specifications — at least not so long as the applicant fails to point to any provision imposing it. Anyone wishing to challenge this must therefore not complain about the method as such, but show that its application in this particular file produced a wrong result — for example, that the average artificially lowered the successful bidder’s price and tipped the ranking. With a 2.5-point gap out of 100, there was certainly room for that argument here. But that is precisely what did not happen, and that brings us to the real lesson. The Council devotes an entire consideration to the conduct of the litigation: a reply brief that copies the application verbatim, even bearing the same date, and a final brief that, after a negative auditor’s report, adds a single sentence. From such conduct it may be inferred that the applicant offers no defence and agrees with the opposing party’s arguments. An application is not a formality you file and forget; litigation is a debate in which you must answer every argument. Here, silence means losing.
The lesson
As a bidder: an action before the Council of State is won in the reply, not in the application. Where the authority mounts a detailed defence, your reply brief must address it point by point — reproducing the application is procedurally equivalent to silence, and the Council will draw the consequences. Respond genuinely to the auditor’s report as well: adding one sentence convinces nobody. On the merits: complaining that the weighting within an award criterion was not in the specifications is not enough. You must show how that concretely harmed your interests as a bidder or affected equality between bidders — an abstract grievance will fail. The same goes for filling missing unit prices with an average: no obligation appears to exist to announce that method in advance, so aim at the result. Calculate whether the method used affected your ranking, and say so with figures. As a contracting authority: motivate extensively and ensure your substantive grounds — here the detailed table with each bidder’s strengths and weaknesses — are clearly apparent from the administrative file. That file is what saves you.
Ask yourself
Does your reply brief actually answer the authority’s defence, or have you reproduced your application? Can you show with figures that the contested assessment method affected your ranking, or does your criticism remain abstract? Do you explain how the undisclosed weighting within an award criterion concretely harmed your interests as a bidder? And as an authority: are your substantive grounds — the per-bidder detailed assessment — clearly apparent from your administrative file, even where you did not publish the weighting of the assessment elements in advance?
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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 →