Annulment of award for energy renovation experts (INTERREG RENOVALT) – IFAPME allowed chosen tenderer to improve offer by requesting additional details on award criterion without giving same opportunity to other tenderer (violation of equal treatment)
The Council of State annulled IFAPME's award of lot 1 (Walloon side) of the contract for energy renovation experts under the INTERREG RENOVALT project to SM POLY-TECH, because IFAPME asked only POLY-TECH to detail its offer for the five sub-activities of the qualitative award criterion (technical-pedagogical competences) in violation of the equal treatment principle, while SM ST.AR.TECH was not given the same opportunity, and the precisions obtained contained new elements that were positively assessed.
What happened?
IFAPME tendered a service contract for technical experts in energy renovation under the INTERREG RENOVALT project via a negotiated procedure without prior publication. Of 14 invited candidates, 3 submitted offers. The contract was assessed on price (40 points) and quality of technical-pedagogical competences (60 points, 5 sub-activities). POLY-TECH scored 97.5/100 at EUR 59,895; ST.AR.TECH scored 72.3/100 at EUR 96,607. The key issue: IFAPME exclusively asked POLY-TECH to provide details on the sub-points of the 5 activities for the quality criterion. POLY-TECH submitted an 11-page document with new elements (Géo Portail, calibrated measuring equipment, procedural methodology, three renovation scenarios, detailed teaching modules). ST.AR.TECH was only asked for a price justification. The Council held that the precisions constituted new elements positively assessed in the evaluation. Under the equality principle, each tenderer in a negotiated procedure must have the same opportunities to improve their offer. A price justification request does not equate to an invitation to improve. Annulment ordered. Costs to IFAPME.
Why does this matter?
This ruling confirms that in negotiated procedures, the equal treatment principle requires all tenderers to have the same opportunities to improve their offers. The distinction between 'clarification' and 'improvement' is functional, not formal: if precisions yield new elements that are positively assessed, they constitute an improvement. A price justification request under art. 36 is not equivalent to an invitation to improve. The principle depends on actual effect, not the authority's intent.
The lesson
As a contracting authority: when asking one tenderer to detail their offer for an award criterion in a negotiated procedure, you must offer the same opportunity to all tenderers. The label 'clarification' does not protect you if the precisions contain new elements. A price justification to another tenderer does not compensate. As a tenderer: if a competitor was given the opportunity to detail their offer while you were not, this constitutes a serious equality violation.
Ask yourself
As a contracting authority: did you ask one tenderer to detail their offer for an award criterion? Did you offer the same opportunity to all? Do the precisions contain new elements? As a tenderer: did the authority give a competitor an opportunity to detail their offer that you did not receive?
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 →