Five railway bridges and one letter that changes everything: Infrabel ignores the lowest bidder’s self-reported ‘errors’ and sees its award suspended
The Council of State suspended Infrabel’s award of the renewal of five bridges on line 50A to Verhaeren & C°: when that bidder itself wrote, a week after the opening, that its tender contained manifest clerical errors — prices too low for the bridge railings and a unit price of €2,625 instead of €26,250 for the load tests — the authority could not simply ignore the letter, but had to examine the items, verify technical conformity and give reasons for its decision.
What happened?
Infrabel put the renewal of five bridges over railway line 50A in Wetteren, Sint-Lievens-Houtem and Erpe-Mere out to open tender, with an estimate of €4,327,530 excluding VAT. At the opening on 2 May 2012 four tenders were on the table: Verhaeren & C° was lowest at €3,999,042.96, ahead of Persyn (€4,744,441.06), Franki Construct (€4,844,931.54) and CEI-De Meyer (€5,415,466.76). Eight days later Verhaeren & C° itself sent a registered letter: its calculation software had automatically linked the more expensive bridge railings to the price of a cheaper type (€725.65 and €130.07 intended instead of €152.25 and €47.25), and for the static load test on a screw pile €2,625 had been entered where €26,250 was meant. It expressly asked that this correction be taken into account and enclosed its subcontractors’ quotes. Because its total price was more than 15 % below the average, Infrabel requested a price justification; Verhaeren & C° confirmed its original total, invoking its experience with the arch bridges on line 36 and economies of scale from concurrent works on line 50A — and enclosed the 10 May letter once again. Infrabel accepted the justification of the total price, corrected only some arithmetical totals and awarded the contract on 18 July 2012 for €3,999,391.46. About the 10 May letter: not a word in the award decision, even though in award decisions on other contracts Infrabel had expressly dealt with the very same letter-writing tactic of the same contractor. Before the vacation chamber, Persyn argued that the chosen tender contained abnormal unit prices, was speculatively priced and technically non-conforming. The Council prima facie agreed. Article 87 does not prevent a bidder from spontaneously flagging an error; it is then for the authority to examine the item under article 99 and to decide, with reasons, whether to correct or not — of which the file showed no trace. The figures spoke for themselves: for the load test Verhaeren & C° quoted €2,625 where the three other bidders ranged from €18,091.76 to €20,806.50, and for the more expensive railing types it quoted €152.25 each time against €524.47 to €795.69 elsewhere. Technical conformity — the admitted pricing of the cheaper railing type — also went unexamined, although a correction may never regularise an irregular tender. Since without that examination it was not established that the contract had been awarded to the lowest regular bidder, the plea was serious and the award was suspended. The implicit refusal to award to Persyn stood: the outcome of a new, this time careful, examination is not a foregone conclusion.
Why does this matter?
The judgment answers a question that regularly arises in practice and that neither the old nor the current legislation settles in terms: what must an authority do when a bidder comes forward after the opening to report errors in its own tender? The Council charts a middle course with sharp edges. The bidder may flag a mistake spontaneously — article 87 does not forbid it — but has no right to have the correction accepted; conversely, the authority may not treat the letter as if it never arrived. It must examine the item, choose (correct, declare the quoted prices valid, or reject the tender as irregular) and state reasons. Infrabel did none of the three — and the contrast with its own practice in parallel files, where it did address the same letters from the same contractor, made the omission all the more striking. The judgment also sharpens the relationship between the mandatory total-price inquiry and the scrutiny of individual unit prices: accepting the total-price justification does not finish the job when certain items sit seven to eight times below the competition and the bidder itself has labelled the deviation an error. A ‘symbolic price’ for an item that ‘will probably never be executed’ did not save the day either — the bidder had itself declared it meant €26,250. Finally, the judgment reaffirms a hard limit: the correction of manifest clerical errors may never serve to regularise an irregular tender. The core reasoning applies equally under articles 34 et seq. of the 2017 placement decree.
The lesson
For authorities: a letter in which the lowest bidder reports errors in its own tender is not an inconvenient detail but a decision point that belongs in the file. Examine the items concerned, decide with reasons whether to correct, uphold the quoted prices or reject the tender, and record this in the award decision — especially where unit prices deviate extremely from all other bidders, not just from the complainant. Never let a correction regularise an irregular tender. For bidders: spontaneously reporting a mistake is allowed and can be wise, but it gives you no entitlement; anyone who systematically raises ‘errors’ after the opening to push up its price risks the authority — with reasons — refusing the correction or rejecting the tender. And for those losing to a suspiciously low tender: compare unit prices item by item across all bidders; extreme outliers on which the file is silent make a serious plea.
Ask yourself
As an authority, do you demonstrably deal with every spontaneous error report from a bidder in the file — with examination, decision and reasons? In your price inquiry, do you look beyond the total price to unit prices sitting several times below all competitors? Do you realise that accepting a total-price justification does not relieve you of verifying technical conformity, especially when the bidder itself admits having priced the wrong (cheaper) type? And as a bidder: do you know you may flag a manifest clerical error, but that the authority remains free — within the bounds of care — to correct, keep or reject your tender?
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 →