A handwritten ‘−3%’ nobody read out costs Nizet the electricity contract for the Couillet care home
Nizet Entreprise had the lowest proclaimed price (580,582.16 euros) for the electricity lot of the Couillet rest and care home, but competitor Henneaux had written by hand on page 30 of its tender ‘all our prices to be reduced by 3%’ — the Council of State accepts that this unproclaimed rebate forms an integral part of the tender, and whoever insinuates it was added after the opening implicitly accuses the administration of forgery and must therefore take the heavy route of formal forgery proceedings.
What happened?
The public social welfare centre (CPAS) of Charleroi launched a public tender with European publication for lot 4 ‘electricity’ of the extension of the rest and care home ‘Résidence au R'cwè du vî clotchi’ in Couillet. At the opening of the six tenders on 13 December 2007, Nizet Entreprise was proclaimed at 580,582.16 euros excluding VAT and Henneaux at 588,979.53 euros. The analysis report of 15 February 2008 reversed the ranking: page 30 of Henneaux's tender bore a handwritten note — ‘all our prices to be reduced by 3%’ — signed by both managing directors, bringing its tender after arithmetical verification to 571,310.14 euros and, after correction of quantities and omitted items, to 584,042.19 euros against 596,509.06 euros for Nizet. The CPAS also found Henneaux 6% below the average — well above the 15% threshold of article 110, § 4 — but nevertheless faxed the firm asking it to confirm its unit prices, which it did on 31 January 2008. On 21 February 2008 Henneaux was designated contractor. Nizet only learned of this by registered letter of 13 November 2008, started summary proceedings, but the CPAS concluded the contract anyway on 9 December 2008, after which the interim-relief judge dismissed the claim on 27 January 2009 for lack of urgency. Before the Council of State Nizet received one procedural gift: the CPAS's reply memorial was sent one day late (29 April 2009) and was excluded from the proceedings of the court's own motion. It did not help. The rebate was formally signed in accordance with article 89, third paragraph of the Royal Decree of 8 January 1996 and thus formed an integral part of the tender; that it was not read out and did not appear in the minutes may just as well have been an oversight by the chairman of the opening session — Henneaux was not present to correct it. The insinuation that the rebate was added after the opening presupposes forgery with the complicity of officials: whoever claims that must formally plead forgery and cannot shift onto the administration the burden of proving the absence of fraud. The second plea also failed: the CPAS had only asked for confirmation of unit prices, not a price justification under article 110, § 3 (which moreover requires a registered letter and identification of the suspect items), and the analysis report — an integral part of the notified decision — sufficed as reasons. The diligence argument came only in the supplementary memorial and was thus out of time. Dismissal, with 175 euros in costs for Nizet.
Why does this matter?
This judgment allocates the risks around the opening session sharply. The proclamation and the minutes matter, but they are not the tender: what is regularly signed in the tender counts, even if the session chairman overlooked it. A contracting authority has no power to modify a tender outside the statutory correction cases — ignoring a validly granted rebate would amount to exactly that. The flip side is brutal in evidential terms for whoever smells a rat: the claim that a handwritten, undated note was added after the opening is not an ordinary procedural argument but an accusation of forgery and collusion. For that there is a dedicated, heavy procedure — the formal forgery plea — and whoever shrinks from it is left with suspicions that do not satisfy the Council. The judgment also draws a useful line in price verification: an informal request to ‘confirm’ unit prices is not a price-justification procedure under article 110, § 3, and thus does not trigger the accompanying duties of investigation and reasoning. Finally, two procedural lessons coloured the outcome: the CPAS's late memorial was mercilessly excluded (it did not sink the CPAS because the facts were strong enough), and Nizet's diligence plea failed because it could — and therefore should — have been raised in the initial application.
The lesson
For bidders: give a rebate the form it deserves. A handwritten margin note can be valid if properly signed, but date it, work it into the tender amount itself and attend the opening session so you can have a wrong proclamation corrected on the spot. If, as a competitor, you suspect tampering with a tender, realise what you are alleging: without formal forgery proceedings it remains an insinuation the court will set aside, and the burden of proof lies with you, not the administration. Also put all your pleas — including a complaint about careless price verification — in the initial application; what surfaces only in a later memorial while the documents were already available is out of time. For contracting authorities: read tenders in full before the proclamation, so handwritten notes are read out and minuted immediately, choose consciously between an informal price confirmation and the formal justification procedure of article 110 — and respect your own deadlines: a memorial that leaves one day late does not exist for the Council of State.
Ask yourself
Do you incorporate rebates into the tender amount itself, dated and signed according to the rules, rather than in a loose margin note? Do you send someone to the opening session to check the proclaimed amounts? Do you realise that contesting a handwritten note in someone else's tender amounts to an accusation of forgery, with the corresponding burden of proof and procedure? Are all your grievances — including those about price verification — fully set out in your application? And as a contracting authority, do you know when to use the formal price justification of article 110, § 3 instead of an informal confirmation request?
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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 →