Three empty boxes, ‘because the price was zero’: Euroclean loses the North Galaxy cleaning contract over a price schedule that had to be complete on pain of nullity
Euroclean left three boxes empty in the price schedule for cleaning the North Galaxy complex because its price for those monthly services was zero euros, but the Council of State refuses to suspend the rejection of its tender: the specifications required a fully completed schedule on pain of nullity, and reading the boxes as zeros produces a tender that promises to remove cobwebs from 1,300 m² and vacuum seventy chairs in zero hours.
What happened?
The Belgian State launched a general call for tenders for the daily and periodic cleaning of the North Galaxy complex in 1030 Brussels. The contract notice appeared in the Bulletin des Adjudications on 14 July 2010 and in the Official Journal of the European Union on 16 July 2010. Point 10.1 ‘Price’ of the specifications provided that the schedule attached to the tender form had to be completed in full ‘on pain of nullity’. Euroclean submitted a tender for lot 1, but in the table ‘1.5. Tower B – Floor 13’, on page 56/68 of the specifications, it left blank the three boxes of item 3 (‘services to be performed once a month’). On 18 April 2011 the State decided to reject its tender as substantially irregular and award the contract to another firm; Euroclean was informed by letter of 20 April 2011. On 5 May 2011 it applied for suspension under extreme urgency and annulment. Its case: it had used the prescribed schedule in full, its price for those services was EUR 0.00, and adding up the columns showed the total was exactly right. The specifications nowhere said what a bidder should enter for a zero price. Moreover, it had undertaken to perform all services, and the authority had ex officio measures and the fines and penalties of Article 19 of the specifications at its disposal should it default. The President of the VIth Chamber, sitting in summary proceedings, did not agree. Euroclean did not dispute that it had left three boxes open, while the specifications required a complete schedule on pain of nullity. The tender evaluation report had moreover examined the hypothesis that the empty boxes should be read as zeros, and concluded that even then the tender was irregular under Article 110 of the Royal Decree of 8 January 1996: a bidder cannot realistically undertake to remove cobwebs and other dirt from the ceilings, walls and paintings of a 1,300 m² floor and to vacuum the fabric of seventy chairs in zero hours. Under Article 97(1) of the same decree, a bidder who leaves an item of the schedule blank runs the risk of being excluded. Terminological inaccuracies in the decision did not affect the intelligibility of the reasoning, which prima facie correctly applied Articles 89, 97(1) and 110(2). Article 114, on choosing the most advantageous tender, only applies between regular tenders, and Euroclean’s was not one. The single plea was not serious; the application for suspension was dismissed and costs were reserved.
Why does this matter?
The judgment shows how hard specifications can bite when they require a complete price schedule ‘on pain of nullity’. Euroclean’s defence was not illogical: the total added up, and the specifications did not say how to record a zero price. But the Council in effect leaves open whether ‘blank’ equals ‘zero’, because the authority had examined both readings and found the tender irregular under each. A blank box is a missing price; a zero price for a real service is a price that does not reflect reality. That second argument is the most interesting: the authority translated the abstract zero into a concrete service — cobwebs on 1,300 m², seventy chairs — and thus showed that the tender contained no serious commitment on that point. The argument that the authority could impose fines for poor performance anyway found no favour either: the Council assessed the regularity of the tender as submitted. Although the judgment was given under the Royal Decree of 8 January 1996, the lesson remains current: a price schedule is a contractual instrument, not a spreadsheet in which only the bottom line counts.
The lesson
For bidders: never leave a box empty in a price schedule, even if you charge nothing for that item. Enter an explicit value and, if you deliberately offer an item free of charge or ‘included in item X’, say so in so many words — and if in doubt, ask the contracting authority before submission how to do it. Bear in mind that a zero price for a service that takes time and staff can in itself be regarded as not reflecting reality. A correct bottom line does not save an incomplete schedule. For contracting authorities: if you require a complete schedule on pain of nullity, you are on strong ground — but in your evaluation report also examine the reading most favourable to the bidder, as was done here. Working out both hypotheses and making concrete why a zero price is unrealistic produces a decision that withstands an application for suspension.
Ask yourself
As a bidder: is every box in my price schedule filled in, including items I do not charge for? Have I expressly marked a free or otherwise included item as such, rather than leaving the box empty? Is a zero price for this service credible, or can the authority show that it takes time and staff? Do the specifications require the schedule to be complete on pain of nullity? As a contracting authority: has my evaluation report also examined the reading of the tender most favourable to the bidder?
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 →