Cutting five 'superfluous' sub-studies from the winning offer to make the price acceptable? That is not correcting a clerical error — that is rewriting the offer
The Council of State suspends the award of the design contract for the redevelopment of municipal buildings in Schoten to Jef Van Oevelen, because the municipality — without any formal procedure and without applying the same exercise to the other bidders — removed five 'unrequested' sub-studies (€96,075.95) from his lump-sum price, thereby lowering Van Oevelen's offer from €506,000 to €409,924 and elevating him to the top of the ranking against what the analysis report showed.
What happened?
On 25 June 2015 the municipal council of Schoten approved the conditions for an open call for tenders for 'the appointment of a multidisciplinary design team for the redevelopment of several municipal buildings'. The contract — under specifications of the same title — was divided into two sub-contracts: (1) a volume study, (2) the full design assignment following approval of the volume study, with an estimated construction cost of maximum €4,400,000 excl. VAT. Point II.4 of the specifications expressly stated that the contract is 'a lump-sum contract': a fixed price covering all services. For sub-contract 2 the bidder gives a fee percentage which, applied to the estimate, yields the global price. Five award criteria for a total of 100 points: fee for volume study 20, calculated fee for full design 30, vision 20, project idea 20, presentation 10. Three offers were opened on 25 September 2015. Proposed prices VAT included: Jef Van Oevelen €612,260, the temporary association Wollaert €500,456, Achtergael €472,771.20. In the analysis report of 16 December something curious happened. The design adviser observed that Van Oevelen had included in his offer a very detailed calculation of his fee for sub-contract 2, built up from ten sub-studies (architecture, stability, technical installations, mobility, heritage, acoustics, EPB/sustainability, safety coordination, demolition and asbestos inventory, surveying — total €521,400 minus €15,400 discount = €506,000). The adviser considered that five of those sub-studies — mobility, heritage, acoustics, surveying, safety coordination — were not requested by the specifications. They totalled €99,000. He subtracted them from the offer price, reduced this by the same 2.95% discount, and arrived at a 'corrected' price for Van Oevelen of €409,924.05 excl. VAT. With that, Van Oevelen moved up to first place: 81.39 points against 78.46 for Wollaert and 71.22 for Achtergael. On 19 January 2016 the college of mayor and aldermen approved the report and awarded sub-contract 1 to Van Oevelen (€40,992.40 excl. VAT for the volume study — which de facto fixes sub-contract 2 at an 11.50% fee). Wollaert filed an extreme-urgency application on 4 February 2016. The core argument: the specifications stipulate a 'lump-sum contract', and the contracting authority cannot unilaterally split and reduce a submitted offer price. On top of that, this 'correction' was applied only to Van Oevelen, while Wollaert had also included mobility, acoustics and surveying elements in its own offer. The municipality defended itself with article 96 of the Royal Decree of 15/07/2011 (correction of material errors) and argued that Van Oevelen's detailed calculation allowed it to 'simply' take out the unrequested studies. Acting Chamber President Pierre Barra dissected this on five levels. One — the nature of the contract. A bidder must commit to both sub-contracts: that follows from the description of the contract, from award criterion 2 (which concerns only sub-contract 2), and from the provision that after the volume study a fee contract for sub-contract 2 will be concluded on the basis of a standard contract already attached to the offer. So awarding sub-contract 1 also binds for sub-contract 2. Two — Van Oevelen's commitment for sub-contract 2. In its offer Van Oevelen wrote literally that the fees of its sub-studies are 'largely determined by the possible impact, the size attributed to them in the total assignment', that they 'may fluctuate considerably' and that it was prepared to 'redo this calculation in light of the final design choices'. The Council noted that this passage at least gives the impression that the price for sub-contract 2 is 'provisional and variable' — while the specifications require a fixed price. That looks like a substantial irregularity that the municipality did not even examine. Three — splitting up a lump-sum price. The municipality subdivided a quoted fee percentage (apparently 11.50%) and selectively removed parts of it. But no party argues that the object of the contract was unclear in the specifications. Van Oevelen took a broader view of that object than what the municipality had in mind — 'his free choice'. This is a call for tenders with substantive award criteria 3-5 that test the quality of the offer. By unilaterally cutting into the bid price, the municipality departed from the lump-sum principle prescribed by the specifications. Four — no article-96 procedure. The municipality now invokes article 96 of the Royal Decree of 15/07/2011, but the contested decision, the analysis report and any other document of the administrative file are silent on that procedure. Article 96 must be interpreted strictly and deserves 'appropriate attention in the decision-making'. The municipality did not even examine whether this was really a material error within that article — at least careless. Five — the actual implementation of the correction. Van Oevelen's price is built up from ten sub-studies, each with a share in the estimated construction cost and its own fee percentage. The whole has its own balance. Simply 'cutting out' five studies has repercussions for the shares of the other studies and for the overall fee percentage. The way the correction was technically carried out is therefore also careless. All those findings, taken together, 'appear to justify suspension'. The single plea is serious. The Council suspends the award to Van Oevelen by extreme urgency. The application against the implicit decision not to award to Wollaert is rejected — suspension does not automatically lead to award to the second-ranked.
Why does this matter?
Many contracting authorities believe that 'correcting calculation errors' under article 96 of the Royal Decree of 15/07/2011 offers broad flexibility: if a bidder has miscalculated or quoted too much, you can simply 'adjust'. This judgment makes clear that this is a much narrower power than commonly thought. Three requirements are implicitly confirmed here: one — a correction must be carried out as such in a formal procedure (at minimum explicitly stated in the analysis report that article 96 is being applied and why). Two — what is corrected must be a 'material error', not a revision of the scope of the offer chosen by the bidder (offering extra studies is not a mistake, it is a commercial choice). Three — if a correction is made for one bidder, the authority must apply the same test to the others, otherwise an immediate equality problem arises. For bidders this means that a 'corrected' winning offer with a price drop of almost 20% is a very strong ground for suspension — especially if you also had 'extra' elements in your own offer and nothing was cut out for you.
The lesson
As a rejected bidder: as soon as you see a downward price correction for the winner in the analysis report, answer three questions. One: is it expressly stated that article 96 of the Royal Decree of 15/07/2011 is being applied and to what 'material error'? If not — strong ground. Two: can the authority explain why the correction is only applied to that offer and not also to yours (if you also had 'extra' elements)? If not — breach of equality. Three: is this a lump-sum or fixed-price contract? Then the authority may in principle not unilaterally split the submitted price — that is not a correction, that is a rewrite. As a contracting authority: correcting a price under article 96 must be done explicitly and reasoned in the analysis report; you must show that it concerns an actual material error (not an editorial or methodological choice by the bidder); and you must examine whether the same correction should be applied elsewhere. 'Studies you think were not requested' should not be cut from a price — rather leave the offer as it is and assess on comparability (or: reject for irregularity).
Ask yourself
Take the analysis report for the contract where you came second. Is there a table showing 'price as submitted' and 'price after review' — and is it lower for the winner? By what percentage? Above 5% and you are in warning territory; above 15% and you are where Wollaert was (Van Oevelen dropped about 19%). Then read the reasoning for the correction. Is article 96 of the Royal Decree of 15/07/2011 explicitly named? Is it explained why it is a material error and not an editorial choice by the bidder? Is it stated whether the same correction was applied elsewhere? One no = potential suspension ground. Three nos = strong suspension ground.
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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 →