Two different discount percentages for the same catalogue = irregular tender — and being right doesn't help if you can't name the law
The Council of State dismisses Centr'Auto's suspension request: its bid for carrosserie tooling was rejected because the discounts on the catalogues differed from those in the dummy order — a self-inflicted inconsistency that prevented price verification — and its plea was partly inadmissible for failing to identify which legal provisions had been breached.
What happened?
On 12 February 2015 the Province of Hainaut approved a specification for a framework contract with call-offs for carrosserie and automobile tooling for its provincial institutions, awarded via open tender with European publicity. Term: one year, four-times renewable. Specification 24662 used a specific comparison mechanism: bidders had to (1) fill in a dummy order (a basket of pre-defined items with unit prices), (2) state the discount on the catalogue price per item, and (3) attach the list of catalogues, numbered, with the discount per catalogue. Four bidders tendered: Covalux, Henrard, Outimex and Centr'Auto. On 30 July 2015 the Province declared Centr'Auto's bid irregular and awarded to Henrard. The motivation: 'the discount granted on the catalogues differs from the one presented in the dummy order. Moreover, the administration was unable to verify the prices of the dummy order on the basis of the information submitted.' On top of that, Centr'Auto had altered a column header of the inventory — 'No. of catalogue and page of catalogue' became 'No. of page in annex' — and attached only numbered excerpts of catalogues rather than the catalogues themselves. Centr'Auto requested extreme-urgency suspension on 16 October 2015 raising a single plea: breach of the Motivation Act (29 July 1991), the Public Procurement Act (15 June 2006), contradiction in the reasoning and manifest error of assessment. Its argument: the specification nowhere expressly required the discount in the dummy order to be identical to the catalogue discount. The Council of State (6th Chamber, president f.f. David De Roy) proceeded in two steps. First — admissibility: for the 2006 Act, the bidder identified NO specific provision allegedly breached; the 'contradictory reasoning' and 'manifest error' grounds were equally unsupported. The plea was therefore only admissible insofar as based on the 1991 Motivation Act. Second — seriousness: the motivation made the reasons for the rejection comprehensible — proved by the detailed factual criticism the applicant itself produced. The Council applied the settled rule that 'developing detailed factual criticism contradicts the alleged formal defect of motivation'. The plea was not serious. Suspension dismissed. Centr'Auto ordered to pay 700 EUR procedural indemnity and 200 EUR costs.
Why does this matter?
Two lessons for those bidding on framework contracts with call-offs and dummy orders. SUBSTANTIVE LESSON: with a comparison model using catalogue + dummy order, consistency between the two discount streams is an implicit requirement, even if the specification doesn't say so literally. The reason: the contracting authority must be able to verify that the execution tariff (catalogue-based) matches the tariff on which the award was made (dummy order). Two different discount sets break that verification and therefore constitute a substantial irregularity within article 95, §3 of the 15 July 2011 Royal Decree. PROCEDURAL LESSON: when formulating a UDN plea, you must identify per breach which specific provision of which act is breached AND why. 'Breach of the Public Procurement Act' without an article is a blanket plea that is immediately declared inadmissible.
The lesson
When bidding on a framework contract with dummy order + catalogue, check two things before submission: (1) are the discounts in the inventory IDENTICAL to those in the catalogue list (per catalogue)? Two different figures = asking to be rejected; (2) if you change a column header or field of the inventory, DON'T — every deviation from the official template is a red flag for irregularity. And when you challenge a rejection: name the SPECIFIC legal provision (e.g. 'art. 95, §3 RD 15/07/2011' or 'art. 3, §2 Act 29/07/1991') per breach, not just the act.
Ask yourself
Build a cross-table: items from the dummy order on the left, catalogues they appear in on the right. Compare per item the discount in the inventory with the discount for the corresponding catalogue. Different (even by 0.5%)? Adjust before submission. And if you've been rejected: review your application — does each invoked breach cite a concrete legal article? If not, your plea is procedurally dead.
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 →