Merchtem recalculated prices per square metre and stripped windows and heating out of the tenders: the Council of State suspends the award of the multipurpose hall
In the Design & Build contract for a multipurpose hall in Merchtem-Brussegem (estimated at 723,835.46 euros excl. VAT), the municipal agency tinkered with the tenders — windows, heating and sanitary fittings vanished from the price comparison — and converted the requested lump-sum prices into a price per square metre that the specifications never announced; the Council of State found both pleas of Elpers, the passed-over lowest bidder, serious and suspended the award to the Pellikaan consortium under extreme urgency.
What happened?
In June 2012 the autonomous municipal agency of Merchtem launched a general call for tenders for the design and construction of a multipurpose hall of roughly 600 m² in Merchtem-Brussegem, conceived as a ‘basic’ building and estimated at 723,835.46 euros excl. VAT. The specifications listed six award criteria: price (40 points, with the maximum for ‘the lowest compliant bidder’), constructional and technical value (20), execution period (15), architecture (15), thermal insulation and EPB (5) and references (5). Three teams tendered: the consortium Pellikaan Bouwbedrijf - Pellikaan Holding Belgium with architects GVE, Weckx - Van Pellicom with RADAR architects, and Elpers with architect Philippe Marchand. The three designs diverged widely: one included covered outdoor terraces, floor heating and a green roof, another large window sections, while Elpers’s design had no windows at all. To make the prices ‘comparable’ the authority introduced an ‘adjustments’ column per tender: for Pellikaan the windows, heating and sanitary piping were taken out of the comparison, for Elpers the price of an expensive sectional door was reduced and sanitary fittings and heating likewise disappeared, and the lavish Weckx - Van Pellicom tender was cut back to a ‘basic’ version. On top of that, the lump-sum totals were recalculated into a price per square metre — a method mentioned nowhere in the specifications. The result: Elpers, despite the lowest total price, scored only 31 out of 40 on the price criterion, against 40 out of 40 for Pellikaan, which won the contract on 31 December 2012. Elpers applied to the Council of State under extreme urgency on 18 January 2013 and prevailed on two serious pleas. First, under article 114 of the Royal Decree of 8 January 1996 the authority may correct arithmetical and material errors, but may not delete or replace parts of the tenders: the deleted items did count towards the ‘constructional and technical value’ criterion, so a bidder offering more expensive equipment collected the higher quality score while its price disadvantage was erased — manipulating the trade-off every bidder in a Design & Build competition must be able to make itself. Second, the price-per-square-metre method departed from what the specifications announced: only a lump-sum price had been requested, with no binding surface area, so bidders could not foresee the recalculation or adapt their design and pricing to it. The perfunctory balancing of interests Merchtem still raised did not persuade the Council. The award decision was suspended.
Why does this matter?
Design & Build contracts strain the classic price comparison: every bidder designs something different, so the temptation to ‘equalise’ the tenders afterwards is great. This judgment draws a clear line. A tender is a whole — its pricing reflects deliberate choices between more expensive materials (higher quality score, lower price score) and cheaper ones (the reverse). An authority that lifts items out of the price comparison while letting them count in the quality assessment upsets that balance and treats bidders unequally: the Council calls this prima facie irreconcilable with article 16 of the Law of 24 December 1993 and with article 114 of the Royal Decree of 8 January 1996, which permits only the correction of arithmetical and material errors. The second lesson matters just as much: the authority is not obliged to set out its assessment method for the price criterion in the specifications, but once the specifications do say something about it, it is bound by it (patere legem quam ipse fecisti). Specifications that request a lump-sum price and promise the maximum to ‘the lowest compliant bidder’ do not tolerate an unannounced recalculation per square metre — certainly not one that reshuffles the ranking and strips the lowest bidder of its advantage. Finally, the judgment shows how little a balancing of interests achieves when the authority fails to substantiate the statutory condition (art. 65/15) concretely.
The lesson
For authorities putting a Design & Build on the market: decide in advance how you will compare widely diverging designs, and write it into the specifications. If you want to compare per square metre, announce it; if you want to neutralise certain equipment items, arrange it before submission — not afterwards in an ‘adjustments’ column. Do not touch the submitted tenders: article 114 covers arithmetical and material errors, not a rework of the offer. And mind the mirror effect between price and quality: what you delete on the price side but keep on the quality side falsifies both criteria at once. For bidders: if you have the lowest total price yet lose on the price criterion, request the award report immediately (Elpers received it within a week) and check whether the assessment method was in the specifications. An unannounced methodology that affects the ranking is a serious plea — even the winner with 40 out of 40 on price is then not sure of its contract.
Ask yourself
Do your specifications state exactly how prices will be compared — lump sum, price per square metre, or another formula — and do you stick to that in the assessment? Do you know you may not delete, reduce or replace parts of a tender to make prices ‘comparable’, and that article 114 covers only arithmetical and material errors? Do you realise that items excluded from the price comparison but counted in the quality criteria manipulate the bidders’ freedom of choice? And as a bidder: after notification, do you compare your total price with your score on the price criterion, and request the award report as soon as the two do not match?
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 →