‘Not fully compliant’ and a subcontractor who won’t hold his price: De Lijn should not have awarded the Aalst bus station works to Heijmans after a question that went unanswered
The Council of State suspends, under extreme urgency, the award by De Lijn of the construction of a bus station and the Statieplein in Aalst to Heijmans Infra, because De Lijn had expressly asked Heijmans to confirm that its canopies and completion period complied with the specifications, never received that confirmation — Heijmans even wrote that its canopies were ‘not fully compliant’ — and still declared the tender regular.
What happened?
The Flemish transport company De Lijn put out to public tender (lowest price) in the utilities sector the construction of a bus station and roads in Dr. André Sierensstraat and the redevelopment of the Statieplein in Aalst, estimated at 3,078,881.30 euros including VAT. The works included 23 canopies of glass-fibre reinforced polyester (item 48). The specifications imposed a mandatory completion period of 170 working days and a tender validity period of 270 calendar days. Five tenders were opened on 9 July 2010. For the three lowest — Stadsbader, Heijmans and Aclagro — the designer found abnormal unit prices and requested price justifications, though not from Heijmans for item 48. Stadsbader’s justification revealed that it had misunderstood the canopies and offered a different material; its tender was declared irregular. The designer then noted that Heijmans was also ‘clearly low’ for the canopies, 8% below the average, while that item accounted for 18% of its total tender, and advised asking it expressly to confirm that the price fully complied with the specifications. On 8 September 2010 Heijmans emailed that ‘on reflection’ its canopies were ‘not fully compliant with what the specifications require’. On 30 September De Lijn asked by registered letter for that confirmation. Heijmans replied on 8 October with an email from its canopy builder Sobelcomp of Loncin, saying that it would not hold its price and could not meet the completion deadlines; Heijmans said it felt ‘held hostage’ by that supplier. On 10 November 2010 De Lijn declared Heijmans’ tender irregular as well and awarded the contract to Aclagro as the lowest regular bidder. On 10 December the finance inspector gave a provisional negative opinion: a reservation added after opening must be disregarded, Heijmans remains bound by its price, and the fact that a subcontractor will not hold its price does not make that price abnormal. De Lijn withdrew its decision and on 23 February 2011 awarded the contract to Heijmans after all. Aclagro applied for suspension under extreme urgency on 18 March 2011. Chamber president Dierk Verbiest partly agreed with the inspector: a bidder remains bound by its price during the validity period and may not amend its tender after opening. But that ground was not sufficient here. De Lijn itself had asked questions about the price and compliance of item 48, it considered those provisions essential enough to exclude Stadsbader over them, and it never received the requested confirmation from Heijmans — quite the opposite. Added to that was the question whether the tender still complied with the mandatory completion period, an essential provision of the specifications. The fact that the specifications provide for penalties for late completion does not alter the fact that this already affects the comparability of tenders at the award stage. Declaring a tender regular without the requested confirmation, and considering the price normal without further price inquiry, was prima facie careless. The first plea was serious; the second was not examined. At the hearing Aclagro withdrew its application against the implicit refusal to award the contract to it. The Council suspended the award of 23 February 2011 to Heijmans Infra.
Why does this matter?
The judgment shows the tension between two principles that are both correct. On the one hand, a bidder is bound by its tender and cannot talk its way out of a low price after opening by adding a reservation; the finance inspectorate had a point there. On the other hand, an authority that has itself voiced doubts about a tender’s compliance and has expressly asked about it may not ignore the answers. Whoever asks ‘confirm that your tender complies’ and receives the reply ‘not fully compliant’ and ‘our supplier will not meet the deadline’ cannot simply conclude that the tender is regular. The judgment also confirms that a mandatory completion period is an essential provision of the specifications, and that penalties at the performance stage do not cure a deviation at the award stage. Finally, the role of the finance inspector’s opinion is striking: De Lijn reversed its first, more careful decision on the basis of that opinion, and it was precisely that reversal that was suspended. A negative opinion obliges the authority to reconsider, not to adopt reasoning that overlooks the facts in its own file.
The lesson
Authorities: if you ask a bidder to confirm the compliance of an item or its completion period, decide on the basis of the answer you actually receive. If no clear confirmation comes, carry out a full price and compliance inquiry, and treat bidders with the same defect equally: if you exclude Stadsbader for non-compliant canopies, you cannot declare Heijmans regular without certainty about its canopies. Do not let a finance inspector’s opinion override your knowledge of the file. Bidders: ‘fixing’ a low price by adding a reservation after opening does not work, because you remain bound by your tender. But be careful too about what you write to the authority: an email saying your offer is ‘not fully compliant’ can cost you the contract. Lock in the prices and deadlines of critical subcontractors and suppliers for the full validity period. Competitors: read the correspondence between the authority and the successful bidder in the file; that is often where the strongest plea lies.
Ask yourself
As an authority: did you receive a clear answer to every question you asked a bidder about compliance or price before declaring it regular? Do you treat similar doubts about the same item with different bidders in the same way? Have you checked whether the tender respects the mandatory completion period, irrespective of the penalty regime at the performance stage? When you revise an award decision after a finance inspector’s opinion: does the new reasoning take account of all the facts in your file? As a bidder: have you secured in writing the price and delivery time of your critical subcontractors for the entire validity period? As an unsuccessful bidder: have you requested the correspondence between the authority and the successful bidder after the opening of tenders?
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 →