Annulment of Design, Build & Maintain award for administrative centre in Ronse for lack of price investigation – neither integral tenders nor BAFO subjected to effective price or cost investigation and scoring for price criterion does not constitute price investigation
The Council of State annulled the award by the City of Ronse of a Design, Build & Maintain contract for an administrative centre to the temporary association F.-P., because the administrative file did not show that the contracting authority had conducted an effective price or cost investigation under Article 35 of the 2017 Royal Decree on either the integral tenders or the BAFO of the chosen tenderer, nor a regularity investigation under Article 76: the mere scoring for the price criterion does not constitute a price investigation, the correspondence about calculated price revisions concerned only one specific element, and the instruction to mark changes in the BAFO in colour did not prove the investigation had actually been carried out.
What happened?
The City of Ronse tendered a works contract through a competitive procedure with negotiation for the design, construction (new build and renovation) and technical maintenance of an administrative centre — a Design, Build & Maintain contract. The contract was estimated at €7,000,000 including VAT. The specifications stipulated a lump-sum price with no price revision. Award criteria were: price (35 points), functionality and flexibility (25), technical quality and sustainability (20), architectural value and spatial vision (15), and project management (5). Of seven candidates, four were selected. A phased procedure was used: partial tender, then integral tender. Three integral tenders were submitted. The interim assessment (10 March 2022) scored: tm F.-P. 77.50, Consortium P. 32, and the applicants (Democo) 63.84 points. Tm F.-P. was designated preferred tenderer and negotiations proceeded only with them. After negotiations and a BAFO, the award report (11 May 2023) recorded BAFO price of €10,769,189.04 excl. VAT, plus 5% revision risk = €11,240,169.96. Final scores: tm F.-P. 85, Consortium P. 32, Democo 76.47. Award was made on 19 June 2023. The applicants filed an annulment action on 31 August 2023. Six documents (nos. 14-19) added by the respondent with its final brief were excluded from the proceedings as late-filed. The Council found the first ground partially well-founded: Article 35 of the 2017 Royal Decree requires the contracting authority to subject tenders to a price or cost investigation. The scoring for the price criterion cannot be equated with such investigation. The award report mentioned a 'regularity investigation' but this only addressed certain elements of the integral tenders, not prices. Correspondence with the chosen tenderer concerned only calculated price revisions, not a comprehensive price comparison. The BAFO contained new elements beyond the integral tender, yet no price investigation of the BAFO was documented. The instruction to mark changes in colour may facilitate investigation but does not prove it was conducted. The award decision was annulled. Costs (€600 court fee, €24 contribution, €770 procedural indemnity) were charged to the respondent.
Why does this matter?
This ruling establishes three key points about price investigation in public procurement. First, scoring for the price criterion is not a price investigation under Article 35. The authority must demonstrate careful examination of each tender's prices, documented in the administrative file. Second, the Council verifies whether a regularity investigation actually took place, not just whether the award report mentions one. Third, when a BAFO contains new elements, the price investigation must be renewed — the instruction to mark changes in colour facilitates but does not prove the investigation was conducted.
The lesson
Conduct a demonstrable price or cost investigation and regularity investigation for every procurement, documented through comparison tables, analyses, or internal reports in the administrative file. Scoring for the price criterion is not a price investigation. When a preferred tenderer submits a BAFO with new elements, the BAFO must also be subjected to a price investigation. As a tenderer, check whether the award report and administrative file show that the contracting authority actually conducted price and regularity investigations on all tenders including the BAFO.
Ask yourself
As contracting authority: have you conducted an effective price investigation on all tenders including the BAFO? Does your administrative file contain supporting documents? Do you consider the price scoring as a price investigation — because it is not. As tenderer: does the award report and administrative file show that a genuine price and regularity investigation was conducted, including on the chosen tenderer's BAFO?
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 →