An authority correcting its own arithmetic is not 'regularising' an irregular bid: Bomefa fails against the award of the mobile-shelving contract for the Brussels courthouse
Bomefa read the recalculated storage capacity and the completed total price of competitor Bruynzeel as proof that the FPS Justice had regularised an irregular bid, but the Council of State found that the errors lay not with Bruynzeel but with the authority itself — which had confused gross with net and overlooked the price of the partition panels — and dismissed the action against the award of the compact mobile-shelving contract for courthouse QB19, awarded for 205,753.35 euros.
What happened?
At the end of 2010 the FPS Justice issued a general call for tenders for the supply and installation of compact mobile shelving in the basement of Brussels courthouse QB19. The award criteria: price at 80 points, technical value at 10 (epoxy-layer thicknesses, permitted loads of frames and shelves) and storage capacity at 10. Two bidders submitted offers on 11 February 2011: Bruynzeel Storage Systems and Bomefa. Bruynzeel scored 100 points, Bomefa 79.53, and on 14 March 2011 the Minister of Justice awarded the contract to Bruynzeel. When Bomefa asked to inspect Bruynzeel's layout drawing — it wanted to verify the offered 7,564.52 linear metres of storage capacity against its own 6,784.18 metres — the FPS refused on confidentiality grounds, but admitted something remarkable: its own check had revealed a difference between the stated and the recalculated capacity and a calculation error in Bruynzeel's bill of quantities. The FPS drew the conclusion itself: the file went back to the Finance Inspectorate and the minister, and on 26 April 2011 a new award decision followed — again to Bruynzeel, now for 205,753.35 euros excluding VAT, scoring 100 points against 85.50 for Bomefa, with a fresh fifteen-day standstill. Bomefa took the case to the Council of State with three pleas that all came down to the same thing: Bruynzeel's bid was substantially irregular and had been impermissibly patched up. The Council dissected the complaints one by one. The 'discrepancy' in storage capacity turned out to be a conversion from gross to net — three centimetres per shelf — directly deducible from Bruynzeel's technical description; that the FPS had initially worked with gross figures was its own mistake, not the bidder's. Using shelves of different lengths was prohibited nowhere: that the conformity table contained only one field for shelf length does not turn that single length into a tender-specification requirement. The price of the partition panels was, contrary to Bomefa's insistence, included in Bruynzeel's total price — the FPS had simply added up only the sub-prices of the four archive rooms in its first calculation. And the complaint that the technical specifications were not substantiated with documentation leaflets foundered on the interest requirement: even with full marks on technical value (10 points) Bomefa remained 4.5 points behind. The equal-treatment plea failed too: Bomefa wanted its own total price reduced by 15,120 euros of unrequested dust-sealing infill panels — which at 205,636 euros would have made it marginally cheaper than Bruynzeel — but since Bruynzeel's price had not been recalculated, only the authority's own error corrected, there was no unequal treatment. The action was dismissed; Bomefa bears the costs of 175 euros.
Why does this matter?
The judgment draws a line that often blurs in practice: the difference between correcting a bid and correcting the authority's own assessment errors. Only in the first case do the strict limits of article 114 of the Royal Decree of 8 January 1996 (only manifest material errors and calculation errors) and the ban on regularising substantially irregular bids come into play. An unsuccessful bidder who sees a changed score or an adjusted amount appear between two award decisions must therefore first answer the question: did something change in the bid, or only in the authority's reading of it? The FPS Justice moreover did what a careful authority should do upon discovering its error before notification: it held back the award, had the file re-checked, took a new decision and ran a fresh standstill. The judgment also shows the discipline of the interest requirement: a plea about a 10-point criterion carries no weight when the gap is 14.5 points. And it recalls that whoever builds unrequested extras into his total price cannot later present them as a deduction to become the cheapest after all.
The lesson
For bidders: do not build your case on the assumption that every adjustment between two award decisions is a prohibited regularisation — request access, reconstruct precisely what changed, and determine whether the error lay in the bid or in its assessment. Recalculate your points gap before raising a plea about a lightly weighted criterion: without impact on the ranking, you lack an interest. And price sharply within what the specifications ask; unrequested extras like Bomefa's infill panels raise your price without your being able to strip them out afterwards. For authorities: if you discover your own calculation or reading error before notification, correct it as the FPS Justice did — suspend the decision, recalculate, re-award with a new standstill — and document that the change flows from your own check and not from contact with the bidder.
Ask yourself
When an authority adjusts figures between two award decisions, can you distinguish whether the bid was changed or an assessment error corrected? Before raising a plea, do you calculate whether winning that point could even tip the ranking? Does your bid contain only what the specifications ask, or do unrequested extras creep into your total price that you can no longer neutralise afterwards? And as an authority: when correcting your own error, do you record in writing what the correction rests on, so no one can pass it off as prohibited negotiations?
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 →