Second-lowest stays second-lowest: why Cleaning Masters lost the West Flanders barracks cleaning contract before its own exclusion was even examined
Cleaning Masters was declared irregular in the Defence cleaning tender because it had changed the frequency in one inventory item from 243 to 96, but since it had in any event submitted the second-lowest price, the Council of State first examined whether its attacks on GOM’s winning bid could reverse the ranking — and when those attacks failed on an over-selective argument about abnormal prices, its own exclusion no longer needed to be assessed at all.
What happened?
The Ministry of Defence launched an open tender for the domestic cleaning of military buildings and infrastructure in several West Flanders barracks, specification no. 7IS401. Five bids were opened on 19 July 2006. General Office Maintenance bid 1,651,531.46 euros including VAT and was the lowest; Cleaning Masters followed with 1,857,723.09 euros. All five bidders passed qualitative selection, but the award report declared four of them irregular under article 110(2) of the Royal Decree of 8 January 1996 and the inventory provisions of the specifications. For Cleaning Masters the reasoning ran to three lines: at the Bos van Houthulst barracks, fixed services, item 29-k, the firm had changed the frequency from 243 to 96. GOM remained the only regular bidder. Correcting purely material and arithmetical errors under article 111 of the same decree, its price rose from 1,651,531.46 to 1,793,679.92 euros — 142,148.46 euros more, or 8.61 per cent — because it had filled in the inventories for ‘services on command’ correctly but had not carried the subtotals over to the financial summary. The minister approved the proposal on 8 December 2006 and took a separate reasoned decision the same day; on 11 December 2006 Cleaning Masters received the reasoning for its exclusion. Its application for suspension under extreme urgency had already been dismissed by judgment no. 167,306 of 30 January 2007; on 8 February 2007 it brought an action for annulment, which came to hearing only on 29 March 2011. Both the State and GOM objected that Cleaning Masters lacked interest because it had not submitted the lowest bid. The Council of State turned this into a question of sequence. To obtain the contract itself, annulment would have to show that Cleaning Masters could still be regarded as the regular lowest bidder. An annulment resting solely on a plea challenging its own exclusion does not achieve that: it would still not be the lowest. The Council therefore first examined the pleas that could actually change the final ranking in its favour — the third and the fourth — holding the first and second, on its own exclusion, in reserve. The third plea had four limbs. That the award decision did not itself justify the correction of GOM’s price gained Cleaning Masters nothing: even if that increase had been wrongly made, GOM’s price remained — all the more so — below its own. The same went for the criticism of the reasoning in the award report. The core lay in the third limb: according to Cleaning Masters, GOM’s price for the ‘services on command’ was more than 18 per cent below its own because GOM had used abnormally low unit prices in nine of the twenty items — 1, 4, 5, 6, 7, 8, 10, 11 and 20 — so that a reasonable and diligent administration should at least have sought explanations under article 110(3). The auditor’s report, which the Council adopted in full, made short work of that reasoning: Cleaning Masters selectively picked the items where it came out favourably and said nothing about other items in the same category, such as items 12 to 19 on the normal and thorough cleaning of rooms, where the two parties’ unit prices diverged just as sharply — 3.9041 against 11 for item 13, 4.7964 against 16.5 for item 15, and 15.7873 against 33 and 49.5 respectively for items 18 and 19. In short, pricing for services on command varied strongly from item to item, sometimes favouring one bidder, sometimes the other — perhaps, the auditor suggested, a feature of the trade. A bidder claiming that a competitor’s prices are abnormally low must subject every item to the same critical examination, including those where its own prices are far lower, and should where necessary support its assertions with an independent expert report. Cleaning Masters did neither and merely restated its position in its final pleading. The fourth limb alleged a difference in treatment that looks stark on paper: its own bid was rejected over an error representing 0.00016 per cent of its bid price, while GOM’s was found regular and then raised by 8.61 per cent. That did not help either. It followed from the discussion of the third limb that there was no reason for the authority to examine GOM’s bid more closely, so it had not been careless in treating it as regular; and the alleged inequality then amounted at most to saying that Cleaning Masters should equally have been found regular — which took it no further, since its price exceeded GOM’s corrected price. The fourth plea concerned qualitative selection. Article 13 of the specifications required, in line with article 71(2) of the Royal Decree of 8 January 1996, that the service provider justify performance without subcontracting of two similar cleaning contracts from the last three years, each covering an area of at least two-thirds of the size of this contract. Cleaning Masters did not dispute that GOM had attached similar contracts, but pointed out that these covered smaller areas, and complained that the administration nowhere justified giving GOM a second chance to complete its references. The Council found that the authority had requested additional references by letter of 17 August 2006 and had expressly referred in the award report to the circular of 10 February 1998. That circular allows a contracting authority, with a view to strengthening competition, to ask for already-submitted evidence to be completed where that evidence permits a first positive assessment. Because such documents contain only objective data no longer open to change, such a request does not as such compromise equality between bidders, provided all bidders are treated alike — which was not disputed here. Moreover Cleaning Masters knew that justification perfectly well: it quoted the relevant passages from the award report and the circular in its own application, so its complaint that the reasons were ‘nowhere to be found’ could not stand; in so far as it wished to know why the administration considered itself entitled to act as the circular describes, it was asking for the reasons behind the reasons. Its criticism of the ‘first positive assessment’, raised only in its reply, came too late, since it could have been made in the application. After the third, the fourth plea too was rejected, and the action was dismissed without any need to examine the first and second pleas. Cleaning Masters bore the costs of the action, set at 175 euros; GOM those of its intervention, set at 125 euros.
Why does this matter?
This judgment is above all a lesson in the architecture of a case, and that lesson holds undiminished fifteen years later. A bidder who is not the lowest in an open tender gains nothing from an annulment that merely undoes its own exclusion — it does not move up. Its action stands or falls with the pleas that touch the ranking itself: the exclusion or the correction of the bid ahead of it. The Council of State here turns that into an explicit order of examination, and stops as soon as those pleas fail. For anyone building a case that means: do not start with the injustice that stings most, but with the plea that can carry you to first place. The second point is a warning about the burden of proof on abnormal prices. A bidder alleging that a competitor bid abnormally low typically points to a handful of items where the gap is spectacular. That is not enough. The auditor here showed, with items 13, 15, 18 and 19, that unit prices diverged sharply in both directions, and that a selective handful from the inventory can prove anything at all. A price argument that is to carry weight requires every item to be examined the same way — including those where the applicant is cheaper — and is best supported by an independent expert report. Otherwise it remains an assertion. There is an instructive tension with a judgment such as the Aalst case of 2026, where a difference in strictness between winner and loser did lead to suspension: there the administrative file showed that the authority had left the winner alone while holding the loser to figures; here there was no evidence that there was any reason to question the winner at all. The third point concerns completing selection references. The circular of 10 February 1998 permits already-submitted evidence to be completed where it allows a first positive assessment, precisely because the data are objective and can no longer be altered: a reference that exists, existed before submission too. That distinction — completing objective, non-manipulable data is allowed; adjusting the substance of a bid is not — remains the line along which authorities must navigate when an incomplete file comes in.
The lesson
If you are a bidder and not the lowest, first work out what you need in order to become first, and build your application around that plea. A plea that merely challenges your own exclusion takes you to second place and no further; the Council of State may not even examine it. If you want to attack the winner’s price as abnormally low, do the full job: go through every item, including those where you are considerably cheaper, explain why the pattern as a whole cannot be accounted for, and consider an independent expert report. A selection of nine favourable items out of twenty is not evidence but a point of view, and the other side will find the other eleven. If you are a contracting authority, you may allow references to be completed where the documents already filed permit a first positive assessment — but put the justification in the award report, refer to the basis you rely on, and treat all bidders the same way. The distinction to guard is between objective data no longer open to change, which may be completed, and the substance of the bid, which may not. Finally, be careful with the mechanism of arithmetical correction: raising the winner’s price by 8.61 per cent is defensible where subtotals were not carried over, but it deserves its own reasoning in the file — not because you would otherwise lose, but because it otherwise becomes your opponent’s plea for free.
Ask yourself
Do you know, before lodging an action, which bid stands ahead of you and which plea is needed to remove it? Does your strongest grievance coincide with that plea, or only with your own exclusion? In an argument about abnormally low prices, have you gone through every item of the inventory, including those where you are cheaper, and can you explain the pattern as a whole? Do you have an independent expert report, or only comparisons you made yourself? And as an authority: does your award report state why you allowed a bidder to complete its references, did that concern objective data that could no longer be changed, and did you offer the same opportunity to anyone in the same position?
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 →