Asking for a €48,275 price supplement after the bid validity period? You may lose your awarded contract to a competitor
Devagro had won the demolition of the Veurne sugar factory for €574,887.92, but its registered request for a €48,275 price supplement prompted the contracting authority WVI to let all bidders revise their prices — and Aertssen took the contract at €610,625.42 while Devagro fell to second; the Council of State dismisses the challenge to that new award.
What happened?
On 3 June 2015 the West-Flemish Intercommunal opens the bids for demolishing the former sugar factory at Veurne. Six bidders compete; Devagro is lowest at €574,887.92 (excl. VAT), followed by BSV at €629,248.38 and Aertssen at €666,782.36. On 27 August 2015 WVI's management decides to award the contract to Devagro. But subsidy delays cause the 180-day bid validity period to expire. On 16 December 2015 WVI asks Devagro to confirm its offer; Devagro replies on 31 December 2015 that it will only confirm subject to a €48,275 supplement, citing higher subcontracting overhead (10% AKW) and rising raw material prices. WVI seeks clarification, receives it on 18 January 2016, but rules on 2 February 2016 that the supplement is 'not consistent, rather a deliberate attempt to approach the level of the second bidder'. WVI invokes Article 103, paragraph 4, 2° of the Royal Decree of 15 July 2011: all regular bidders may revise their prices — except Devagro, who is locked into its proposed supplement. The new ranking on 29 February 2016 reads: Aertssen €610,625.42 — Devagro €623,224.52 — BSV €629,548.38 — RTS Infra €785,328.22. WVI asks Aertssen to justify several unit prices, including item 72 'Binder (at 2 GW%)'. On 13 April 2016 the management awards the works to Aertssen at €610,625.42. Devagro files an extreme-urgency appeal on 3 May 2016. Its sole plea: Aertssen's low price for item 72 reflects the use of recycled cellular concrete as binder, a material without raw-material declaration or use certificate. Devagro argues the offer is therefore substantially irregular (art. 95 §§3-4 of the RD) and the equality principle is violated. The Council of State dismisses the plea: the specifications expressly authorise 'lime, cement, recycled cellular concrete, ...' as binder; the clause addresses the contractor and requires technical specifications 'to be submitted to the project manager for approval' — i.e. during execution, not at bid stage. Aertssen had attached a VITO letter on the promising application of treated cellular concrete sand as a lime substitute. WVI was entitled to accept that justification.
Why does this matter?
Two lessons in one for bid managers. First, an expired bid validity period is not a free pass to update prices upward. A serious supplement may trigger the contracting authority to relaunch under Article 103, paragraph 4, 2° — competitors then revise downwards while you stay locked. Second, when specifications allow several materials or methods, the bidder need not submit certification upfront. Certification issues belong to execution, not to admissibility. Challenging a competitor on that ground means challenging specifications you never contested.
The lesson
If your bid validity period expires and you request a price supplement, expect the contracting authority to be entitled to relaunch the procedure via Article 103 of the Royal Decree on Procurement. Other bidders can revise downward; you cannot. The contract may slip away even if you initially ranked first. Defence: document concretely and per item why your supplement is unavoidable — not selective, not 'coincidentally' matching the second bidder's level. And if you still lose to a competitor using a non-certified alternative: first check whether the specifications themselves allowed it — otherwise your plea is dead on arrival.
Ask yourself
When your bid validity period is about to expire: have you backed your supplement request with concrete per-item figures (not blanket percentages), with external pricing references, and is the gap clearly attributable to elapsed time rather than to knowledge of competitors' prices?
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 →