'Removing' a sub-item at evaluation because it won't be executed is not allowed — even if it changes the winner
The Council of State suspends IGEMO's award to Gebroeders Van Den Bogerd because the authority simply set aside sub-item 20 (raising with imported soil) at evaluation — while article 100 of the Royal Decree on procurement requires that all sub-items count in the total sum.
What happened?
On 28 October 2014 IGEMO launched an open tender for road and sewage works in the Maenhoevevelden housing project at Sint-Katelijne-Waver (phase 1A), estimated at €964,497.29 incl. VAT. Eleven bids were opened on 5 December 2014. NV Aannemingsbedrijf L. Janssens ranked first. For sub-item 20 ('raising 4441 m³ with excavated soil delivered by the contractor, including terrain profiling') Janssens offered a minus price of €20,000 — against an average of €10,422.12. On 23 December IGEMO asked for price justification; Janssens replied on 5 January 2015. In its 11 February review report IGEMO accepted: Janssens had its own quarry/concrete plant nearby (SORAF, ±15 km) with surplus stock to be cleared on short notice. All bids were declared regular. But between the specifications (10 October 2014) and the final award something had changed. On 11 August 2014 the local executive had granted the parcelling permit for phase 1A. An appeal was filed with the provincial executive. Its decision of 23 December 2014 imposed as additional condition: 'the soil balance of the plot must be neutral; any raising must be compensated by excavation'. Sub-item 20 (raising with imported soil) could no longer be executed. IGEMO then set sub-item 20 aside at evaluation — for every bidder. Janssens dropped from first to third place and Gebroeders Van Den Bogerd became the new first-ranked. The award went to Van Den Bogerd. Janssens filed for extreme urgency. IGEMO's arguments: sub-item 20 conflicted with the parcelling permit; speculation on its falling away could distort competition; the general principle of fair competition entitles the authority to 'neutralise' distorting items. The Council disagrees. Article 100 (last paragraph) of the RD of 15 July 2011 requires the authority to consider the total sum of all sub-items at award. In open tendering, the contract goes to the lowest regular bid — that lowest price by definition is the sum of all requested sub-items. The authority cannot set sub-items aside between bidding and award, even if they conflict with later permit conditions. Faced with changing execution conditions, the correct response is to abandon the award and start a new procedure — not to rewrite the evaluation rules. The award was suspended.
Why does this matter?
For bid managers: if you bid a minus price or a notably low price for a specific sub-item, and you see the authority drop that item 'for execution reasons' at evaluation — you have a serious ground. The total sum of all sub-items governs open tendering. For authorities: if a sub-item becomes non-executable (changed permit, new law, changed circumstances), the right response is to abandon and re-tender — not rewrite evaluation rules. The patere legem principle binds you to your own specifications.
The lesson
As an authority facing a sub-item rendered non-executable by external circumstances: choose one of two paths. Path A — abandon and re-tender with adapted specifications. Path B — award on the basis of all sub-items as originally drafted, and adapt the non-executable item through an agreed reduction during execution. What you may NOT do: selectively drop sub-items at evaluation, even with 'equal treatment for all bidders'.
Ask yourself
Compare the final ranking with one based on the original total sum of all sub-items. Different result? Then the authority weighted a sub-item differently than the specifications said, or left one out. That is a potentially strong ground under article 100 of the RD of 15 July 2011 — regardless of any 'good execution reasons'.
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 →