Counting points without announcing it first is allowed: IFAPME’s ‘positive elements’ method survives the Council of State’s urgency test
The architects’ team ABR-BSolutions, second with 83.92 points against 88.55 for R2D2, attacked the award of the design contract for the new IFAPME/FOREM training centre in Namur because the authority had ranked the bids using a ‘positive elements’ system not announced in the specifications — but the Council of State holds that a contracting authority need not disclose its evaluation method in advance, as long as it is not arbitrary, does not distort the criteria and is applied equally to all bids.
What happened?
On 11 April 2022, with European publication, IFAPME launched a joint services contract to appoint a design office for a new ‘Eco-Centre de formation’ IFAPME/FOREM of some 16,500 m² on Chemin du Fontillois in Belgrade (Namur) — a full design assignment covering architecture, structural engineering, building services, landscaping, energy performance and a low-carbon concept. Four award criteria: architectural intentions (40 points), sustainable construction approach (35 points, with sub-criteria energy-envelope, energy-equipment and sustainability/low-carbon concept), a fee percentage between 6 and 8.5% (15 points) and budget coherence (10 points). Seven teams submitted bids on 10 June 2022. R2D2 scored 88.55 points, the ABR-BSolutions consortium 83.92; then came Archipelago (66.24), Aural-Biemar (64.29), B612 (63.12), Altiplan-BEL (60.04) and Samyn-Syntaxe (53.46). On 27 October 2022 IFAPME awarded the contract to R2D2 at a fee of 8.00%. ABR-BSolutions applied to the Council of State on 14 November 2022. Their first plea targeted the evaluators’ working method: for each sub-criterion they had counted the ‘positive elements’ of each bid — including, here and there, ‘half’ positive elements — and ranked accordingly, a method found neither in the specifications nor, according to the applicants, in the award decision. They added a series of scoring errors and manifest errors of assessment: their fully carbon-free CO₂ heat pump had been dismissed as too expensive while R2D2’s geothermal solution was uncertain in karst terrain, their BREEAM certification had been ignored, and the authority had assessed only the BNE figure and not the EW level. The Council of State rejected it all. A contracting authority is not obliged to disclose its evaluation methodology before bids are submitted; it may structure its own analysis as long as the method is not arbitrary or incoherent, does not distort the announced criteria and is applied to all bids equally — and it must be understandable from the reasons given. Those requirements were met: the award decision stated, for each sub-criterion, how many positive elements each bid contained and which ones. The ‘semi-positive’ elements were a value judgment within the authority’s discretion, and arithmetically harmless besides: even counted as full points or zero, the ranking for the sub-criteria concerned remained unchanged. The identical reasoning for two bids ranked ex aequo on the budget criterion also passed muster — the words ‘tout comme’ showed a comparison had indeed been made. The technical complaints ran into the marginal standard of review: whoever alleges a manifest error must prove it, and the Walloon Géoportail report annexed to the application — which merely flagged, ‘indicatively’, a palaeokarst depression within 500 metres — was not enough to sink R2D2’s geothermal option. The claim against the implicit decision not to award the contract to the applicants was moreover inadmissible: they did not show the contract necessarily had to go to them. The application for suspension was rejected; the bids remain confidential and costs, including the procedural indemnity, are reserved.
Why does this matter?
This judgment gathers in a single case nearly all the classic doctrines on bid evaluation. First: the evaluation method need not appear in the specifications. Discovering after the award that the authority worked with ‘positive elements’ does not in itself give you a plea — the method must only be coherent, non-distorting, equally applied and understandable from the reasons. That is settled case law, but rarely spelled out as didactically as here, down to the finding that ‘half points’ are a permissible value judgment. Second: identical, even copy-pasted reasoning for two equally scored bids is not a failure to state reasons where it shows a comparison was made. Third — and most important for practice — the manifest error of assessment remains a high hurdle: technical claims about heat pumps, karst subsoil or low-temperature radiators must be proven, not asserted. The applicants had an impressive technical argument (down to the Stefan-Boltzmann law), but no evidence capable of piercing the authority’s margin of discretion; at the hearing they even conceded their solution was more expensive to buy. Finally, the judgment confirms that a claim against the implicit non-award is admissible only if the applicant convincingly shows the contract had to be awarded to it — a bar that is rarely cleared.
The lesson
For bidders: do not aim at the evaluation method as such — the fact that the authority counts points in a way not set out in the specifications is not in itself unlawful. Look instead for arbitrariness, distortion of the criteria or unequal application, and support every technical claim with evidence: an indicative map from a geoportal or a reference to a certification will not establish a manifest error of assessment. Also state explicitly and concretely in your bid what you want counted — what is only implicit in a certification may be overlooked. For contracting authorities: you may structure your evaluation freely, including by counting positive and semi-positive elements, but make sure the reasons make the method visible and apply it demonstrably to everyone alike. Identical reasoning for equivalent bids is acceptable if the comparison shows through.
Ask yourself
In a challenge to an award, do you look for arbitrariness, distortion or unequal treatment rather than the mere fact that the evaluation method was not announced in advance? Can you support every technical criticism of the assessment with evidence that survives a marginal review — or does it remain assertion? Is everything you want scored set out expressly and in detail in your bid, rather than hidden behind a certification such as BREEAM? And as a contracting authority: can a reader deduce from your award reasoning how you reached the ranking, per sub-criterion and for each bid?
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 →