Urgent suspension request by Ibens-Detoo against award of Design & Build primary school Overijse granted — restriction to one preferred bidder after first offer violates competition — only two-point difference — BAFO after eleven negotiation rounds not comparable with unchanged first offers
The Council of State suspended GO! Education's award decision for the Design & Build contract for a new primary school in Overijse, because GO! had only admitted the top-ranked tenderer (tm Dethier) to negotiations after the first offers and placed Ibens-Detoo in a waiting room, while the score difference was only two points, Ibens-Detoo's first offer was regular, and Dethier's BAFO after eleven negotiation rounds could not be compared with unchanged first offers.
What happened?
GO! Education tendered a Design & Build contract for a new primary school in Overijse (budget €11.2-13.3M) through a competitive procedure with negotiation. After first offers, tm Dethier scored 70.8 points versus Ibens-Detoo's 60 points (but Ibens was significantly cheaper). GO! designated only Dethier as preferred bidder and placed Ibens in a waiting room. After eleven negotiation rounds, Dethier's BAFO scored 78.1 points (7.3 more than first offer). The Council found this violated Articles 38(7) and 80 of the 2016 Public Procurement Act: the two-point quality gap was bridgeable, the first offer was regular, the BAFO could not be compared with unchanged first offers, and the negotiations proved to be substantial (interim offer, budgetary optimisations). Suspension was ordered.
Why does this matter?
This ruling clarifies that restricting negotiations to a single preferred bidder is not automatically justified even when explicitly provided in tender documents. Article 80 requires effective competition in the final phase. A two-point gap does not justify exclusion from negotiations. Comparing a BAFO after intensive negotiations with unchanged first offers is methodologically incorrect.
The lesson
Reduce the number of tenderers only gradually based on award criteria. Never compare a BAFO after negotiations with unchanged first offers. Challenge placement in a waiting room when your regular offer has a limited point gap. The negotiated procedure is designed to improve offers.
Ask yourself
Is the score gap after first offers large enough to justify restriction to one bidder? Are remaining offers regular? Are you comparing BAFO with BAFO or with unchanged first offers?
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 →