650 euros for 3,875 m² and for 90,519 m² alike: price as a lump sum where the tender documents require presumed quantities, and you are out
DEF Belgium saw its offer for the fire-detection works in the provincial buildings of Walloon Brabant declared null because it quoted the same total price for ten consecutive items, whether the area was 3,875 or 90,519 square metres; the Council of State saw no correctable material error but a substantial irregularity, and rejected the extreme-urgency application against the award to Chubb Security System — after first dismissing the province’s language-law objection.
What happened?
The province of Walloon Brabant organised a public tender for the study and execution of works to bring the fire-detection and alarm installations in its provincial buildings up to standard, maintenance included. At the opening of the offers on 19 June 2012 the ranking read: Balteau first, DEF Belgium second, Chubb Security System third and V.L.V. fourth. After requesting additional documents from DEF Belgium and Chubb, the provincial executive awarded the contract on 19 December 2012 to Chubb. DEF Belgium sought suspension under extreme urgency on 22 February 2013; Chubb intervened as beneficiary. The province first tried to have the case declared inadmissible with a remarkable argument: DEF Belgium has its operating seat in the Dutch-language region, so its decision to bring proceedings before the Council of State should, under the Flemish language decree of 19 July 1973, have been drawn up in Dutch — a defect it claimed could no longer be cured in time. The Council swept this aside: the decree covers employers’ acts and documents prescribed by law or intended for their staff, and a decision to litigate is neither. The application was admissible. On the merits DEF Belgium had two pleas. First: the offers were valid for 180 calendar days, until 16 December 2012, and the award of 19 December fell outside that period, so the contract could only be concluded with the written and unreserved consent of the chosen bidder — of which the contested decision said nothing. The Council answered that this notification by definition follows the award decision, and that Chubb had declared it accepted performance on the terms of its offer; the award’s reasoning did not have to address that later step. The second plea went to the heart of the case: DEF Belgium’s own offer had been set aside because, for each sub-item of item 3.1 (phase 1: survey of the existing situation and study), it quoted an identical amount as unit price and as total price. A mere clerical error, DEF Belgium argued, which the province should have corrected itself under article 111 by dividing the total prices by the presumed square metres. The Council found that ten consecutive items carried the same global price of 650 euros while the areas ranged from 3,875 m² to 90,519 m². That is no slip of the pen: the real intention was to offer a lump-sum price for those ten items, whereas the tender documents treated them as presumed-quantity items. Such an offer breaches an essential requirement concerning price and could be set aside as absolutely null under article 110, § 2; the price-justification mechanism of article 110, § 3, never came into play. Neither plea was serious. One final scene at the hearing: DEF Belgium asked to consult Chubb’s offer, but the Council of its own motion withdrew the offers from the parties’ inspection under article 65/26 of the law of 24 December 1993, to protect business secrets. The extreme-urgency application was rejected and DEF Belgium paid the costs, set at 300 euros.
Why does this matter?
The judgment draws a sharp line between two figures bidders like to conflate: the purely material error the authority can or must correct under article 111, and the deliberate pricing choice that departs from the system of the tender documents. One miswritten figure can be corrected; ten consecutive items with exactly the same total price across areas differing by a factor of twenty-three betray a choice. Whoever prices as a lump sum where the tender documents ask for presumed quantities and unit prices makes his offer incomparable and thereby breaches an essential price requirement — sanctioned by the absolute nullity of article 110, § 2, without the authority first having to ask for clarification or price justification. The judgment also holds two side lessons for practice. The language objection: the Flemish language decree does not force a Flemish company to draw up its decision to litigate against a Walloon authority in Dutch — the attempt to sink a procurement dispute on language legislation failed. And offer validity: an award after the validity period has expired does not make the decision unlawful; the law itself regulates that scenario through the required written and unreserved consent of the chosen bidder, which only matters at the conclusion of the contract and thus has no place in the award’s reasoning.
The lesson
For bidders: fill in the bill of quantities as the tender documents conceived it. Presumed-quantity items call for genuine unit prices; whoever overlays them with a single lump sum for commercial reasons cannot later invoke a material error and risks the absolute nullity of his entire offer. If in doubt about an item’s price structure, ask a question before submitting instead of rewriting the tender documents yourself. Do not count on seeing the winner’s offer in extreme-urgency proceedings either: business secrecy prevails at that stage. For contracting authorities: an offer whose pricing undermines comparability may be set aside as substantially irregular without a detour through clarification requests or price justification — but document, as here, why the prices quoted cannot be a slip of the pen. And if you award after the offers’ validity has expired, make sure the chosen bidder’s written and unreserved consent is in place at the conclusion.
Ask yourself
Does your offer treat every item as the tender documents qualify it — unit prices where presumed quantities are stated, a lump sum only where a lump sum is requested? Do you realise that a deliberate departure from that system is not a correctable material error but a substantial irregularity nullifying your entire offer? Do you know that an award decision taken after the offers’ validity period is not unlawful for that reason, and that the chosen bidder’s written consent only matters at the conclusion of the contract? And in extreme-urgency proceedings, are you not counting too readily on inspecting your competitor’s offer — do you know the confidentiality rule of article 65/26?
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 →