Dropping mandatory options after the BAFO without warning — and reversing the ranking
The Council of State suspends the award of a renovation contract because the CPAS dropped mandatory options (triple glazing, ecological materials, single-flux ventilation) after receiving BAFOs without informing tenderers during negotiations, thereby reversing the ranking to the detriment of the applicant.
What happened?
The CPAS of Hamois tendered energy renovation works for six adapted dwellings via negotiated procedure with prior publication. The specifications required three mandatory options: triple glazing, ecological insulation materials, and single-flux ventilation. After BAFOs were received, the CPAS decided not to take up any of the three options and compared offers on base prices only. This reversed the ranking: Denis won at €486,909 base price, while RENO.ENERGY at €513,741 would have ranked first if options were included (its option prices were €87,677 vs Denis's €184,487), especially since it also scored maximum on the execution deadline criterion. The Council found that whether these are 'options' or 'variants' (the parties acknowledged at hearing they were actually variants), the authority cannot drop them after the BAFOs without prior warning. To avoid arbitrariness, the authority must either indicate in the tender documents that options are detachable and can be excluded before evaluation, or inform tenderers during negotiations before the final offer. The CPAS did neither. The financial director had already warned in her advisory opinion that the equality and transparency principles required prior communication. The suspension was granted.
Why does this matter?
This ruling establishes an important principle for options and variants in negotiated procedures. While Article 87 of the Placement Decree (requiring a single ranking of variants and options) does not apply to negotiated procedures, the equality and transparency principles under Article 4 still apply. A contracting authority that imposed mandatory options cannot simply drop them after BAFOs without prior notice to tenderers.
The lesson
For contracting authorities: if you include mandatory options or variants in your specifications, you cannot simply drop them after BAFOs. If you want to retain the possibility of not taking up options, communicate this before the final offer deadline — either in the documents or during negotiations. For tenderers: if mandatory options were dropped after BAFOs without prior notice and this reversed the ranking, you likely have a strong ground for suspension.
Ask yourself
Did you include mandatory options or variants in your specifications? Are you considering not taking them up? Have you informed tenderers before their final offer? If not, check whether dropping them changes the ranking — that's the danger zone.
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 →