Ghent University Hospital was allowed to question its bidders about flagged gaps: no prohibited improvement of the offer, because Cordeel’s subcontractor prices predated the opening
Strabag narrowly lost the open call for tenders for the renovation of the Ghent University Hospital outpatient clinics to Cordeel and sought suspension under extreme urgency, because after accepting some gaps flagged by Strabag the hospital had also questioned the other bidders; the Council of State rejected the action, because the subcontractor prices attached to Cordeel’s offer — dated before the opening — showed that Cordeel had not modified its offer but merely confirmed it.
What happened?
Ghent University Hospital launched an open call for tenders for works consisting of the ‘renovation of several outpatient clinics with the addition of two atria’, estimated at 26,169,591 euros including VAT and published in May 2014. The contract was governed by special specifications UZG/DI/001-EAO/2014 and awarded on the criteria of price (out of 80) and planning (out of 20). In its offer Strabag flagged several gaps in the bill of quantities and priced supplements for them: item 03.23 referred only to the demolition of concrete floors ‘on full ground’, while the plans also showed floors on the upper storeys; and items 41.54 and 41.55 asked a supplement for RF 60 and RF 120 fire-resistant glazing but set no requirements for the fire resistance of the aluminium profiles holding that glazing. Together this amounted to more than 540,000 euros. At the opening on 30 June 2014 there were three offers. On 22 August 2014 the hospital asked Cordeel and Algemene Bouw Maes whether their prices for those items could be maintained, explaining that the supplement for the upper floors and for the RF profiles was included. Both confirmed this in writing on 29 August 2014. The evaluation report of 1 September 2014 found no abnormal total prices and added the flagged supplements to Strabag’s price using the gap formula. The final ranking was: Cordeel 100 points (23,587,993.60 euros including VAT), Strabag 97 points (23,999,030.73 euros including VAT) and Maes 89 points. The board awarded the contract to Cordeel on 29 September 2014. Strabag sought suspension under extreme urgency: by contacting the other bidders after accepting the gaps and letting them confirm, in a suggestive way, that the supplements were already included, the hospital had in fact let Cordeel submit a second offer — a substantial irregularity. The Council of State did not follow this. Cordeel’s offer included two subcontractor quotes predating the opening: one of 24 June 2014 on items 41.54 and 41.55, expressly referring to ‘window assemblies’, and one of 27 June 2014 on the whole of item 03.23, with a price for 1,542.26 m² — the sum of the concrete floors in the basement, the ground floor and the three storeys. This showed that Cordeel’s prices originally already covered the window profiles and the demolition of all the concrete floors. Cordeel had therefore neither modified nor improved its offer; the first plea rested on a wrong premise and was not serious. The second plea — that the hospital had checked only the total prices and not the unit prices for abnormality — also failed: the administrative file showed that the unit prices had been placed side by side, and Strabag’s and Cordeel’s were not at all of the same order of magnitude for the items concerned. Both pleas being not serious, the action was rejected. Cordeel’s intervention was admitted. Strabag was ordered to pay the roll fee of 200 euros and Cordeel the intervention fee of 150 euros; a procedural indemnity for the intervening party was refused, because article 30/1, last paragraph, of the coordinated laws provides that an intervening party cannot claim it.
Why does this matter?
The line between a permitted clarification and a prohibited improvement or modification of an offer is one of the most sensitive points in award review. An authority may not let a bidder substantively adjust its offer after the opening, because that breaches the equal treatment of bidders. But it may verify what a price actually covers. This judgment shows where the hinge lies: not in whether the authority contacted the other bidders, but in whether their answer modifies the original offer or merely confirms what was already in it. Decisive here was the evidence: subcontractor quotes dated before the opening, showing that Cordeel had already priced the window profiles and the full demolition. For anyone challenging an award, the lesson is as hard as it is useful: a plea about a prohibited improvement stands or falls on its factual basis. Whoever assumes that the winner ‘undoubtedly’ adjusted its offer but does not prove it against the documents in the file will see the plea dismissed as not serious — especially in an extreme-urgency procedure, where the Council rules prima facie and there is no room for extensive evidence.
The lesson
If, as a bidder, you flag a gap in the bill of quantities and price a supplement for it, be aware that the authority may ask the other bidders whether their price already covers that work. That is not in itself a prohibited improvement of their offer. To challenge such an award successfully, build your plea on the documents, not on a presumption: show concretely that the winner changed its price after the opening. Ask in good time for access to the evaluation report and the correspondence with the other bidders, and look for conclusive evidence such as dated subcontractor quotes. As an authority, document why an answer is merely a confirmation and not a change — keep the subcontractor prices and the original price build-up in the file. And remember that an intervening party supporting you has no right to a procedural indemnity: it bears only its own intervention fee.
Ask yourself
If you challenge an award on the ground of a prohibited improvement of the winning offer, can you prove it with concrete documents rather than a presumption that the winner ‘undoubtedly’ adjusted its price? Do you realise that the authority may question the other bidders about what their price covers without thereby automatically modifying their offer? Did you ask in good time for the evaluation report and the correspondence to check whether the answers confirm or change the offer? And do you know that an intervening party supporting the authority bears its own intervention fee but cannot claim a procedural indemnity?
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 →