Annulment of award decision for Neeroeteren childcare facility: internal contradiction in evaluation — own workforce used as positive element for chosen tenderer despite announced removal — unequal treatment of tenderers
The Council of State annulled the award decision by the City of Maaseik for the construction of a childcare facility in Neeroeteren, because the evaluation report was internally contradictory — it announced that plus and minus points based on in-house work were removed, but still used this element as a positive factor in evaluating the chosen tenderer's planning — and because tenderers were treated unequally, as the applicant with the largest share of in-house work was not credited with this advantage.
What happened?
The City of Maaseik tendered construction of a childcare facility (Neeroeteren Community Centre Phase 1). Award criteria were price (80 points) and approach plan (20 points). Five tenders were submitted; three remained after price justification. An initial evaluation on 31 January 2024 awarded the contract to BV E.B. (94 points) over NV D. (93.86 points), with NV D. scoring higher on the approach plan (18/20 vs 14/20) partly due to more in-house work. After NV D. flagged legal issues, the decision was withdrawn. A revised evaluation on 28 March 2024 announced that plus/minus points based on in-house vs subcontracted work were removed. However, BV E.B.'s planning evaluation still stated that 'large volumes of in-house work and in-house joinery production give confidence in maintaining a tight construction schedule.' BV E.B. rose from 14 to 16 points on the approach plan; NV D. remained at 18. BV E.B. won with 96 vs 94.47 points. The Council found internal contradiction (removal announced but element still applied) and unequal treatment (in-house work counted for BV E.B. but not NV D., who had the most in-house work). The award was annulled.
Why does this matter?
This ruling demonstrates that when a contracting authority announces it will remove an evaluation element, it must apply this consistently across all tenderers. Using the removed element as a positive factor for one tenderer while not crediting others constitutes both an internal contradiction and unequal treatment, leading to annulment.
The lesson
When you announce that an evaluation element is removed, apply this consistently for all tenderers. Do not use the element — even indirectly through another evaluation aspect like planning — as a positive factor for one tenderer only. As a tenderer, compare the announced methodology with the actual evaluation of each tenderer to identify internal contradictions.
Ask yourself
Has the contracting authority removed an evaluation element? Does it still appear in individual evaluations? Is the same standard applied to all tenderers?
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 →