A bidder admits its own price doesn't add up — you cannot then award 'as submitted' without a reasoned answer to the question whether that price is still normal
POM Antwerpen could not push through the award of a 7.8-million-euro infrastructure contract to Deckx after Deckx itself, one month after opening, admitted in writing that its unit prices for water-retaining sheet piling did not include the purchase or depreciation of the steel sheets — because the award report nowhere reasoned why those self-confessed low prices were nevertheless normal.
What happened?
On 12 January 2016, POM Antwerp publishes an open call for tenders for project 'B 10/004 Disclosure and development of regional business park Veiling Zuid – infrastructure portion: CONSTRUCTION – Sint-Katelijne-Waver': sewerage and road works, estimated at 7,815,629.08 euros excl. VAT. Five bids open on 10 March 2016 (incl. VAT): Aswebo 8,868,609.90; Aertssen 8,957,239.46; Deckx 7,775,053.72; VBG 8,676,986.07; DCA 8,921,537.72. Deckx is by far cheapest — almost 900,000 euros below number two. Four weeks later, on 8 April 2016, Deckx writes registered post and faxes the contracting authority. The tone is anxious. Having reviewed its bid in light of the prices read out at opening, Deckx must conclude that 'a significant cost-calculation error was made for the items relating to water-retaining sheet piling'. For three contested items — 281 (sheet pile + retaining screen, 3 m < H ≤ 4 m, estimated 756 m), 282 (4 m < H ≤ 5 m, 492 m) and 390 (sheeted excavation pit + retaining screen at engineering structures, 2,000 m) — Deckx admits it priced only delivery and installation of sheet piles, not their purchase or depreciation. The corrected prices would be: post 281 from 41.06 to 182.24 euros/m; post 282 from 45.54 to 186.72 euros/m; post 390 from 47.08 to 188.26 euros/m. Detailed price build-up and a 5 November 2014 quote from a steel supplier are attached. Deckx asks that the error be corrected. POM replies on 21 April with a principled position: Article 87 of the Royal Decree on procurement of 15 July 2011 prohibits a bidder from invoking, after opening, formal defects, errors or omissions in its offer. Deckx's bid will be assessed 'as submitted'. On 12 May 2016, POM's executive committee approves the award report and awards Deckx the contract for 7,775,053.72 euros — 17.78% below the estimate, 11.87% below the calculated arithmetic mean of 7,291,221.41 euros (Article 99, §2 KB plaatsing). The award report justifies its choice as follows. With every bidder, several items deviate by more than 15% (sometimes 30%, sometimes 50%) from the per-item arithmetic mean. But 'every price is justifiable given the equipment owned by the bidder or the execution method it chooses'. No abnormally high or low prices; the total bid amount is also normal. Deckx's 8 April letter is 'set aside'. VBG, which had quoted 296.01, 354.18 and 280.32 euros/m for those same three items — about seven times Deckx's rates — files an extreme-urgency suspension on 3 June 2016. Sole plea: the offer should have been rejected as substantially irregular. A bidder admitting that its prices ignore essential cost components offers no price guaranteeing performance; once the contract is awarded, there is no longer certainty that the bidder will perform at the stated price. Chamber president Dierk Verbiest, with concurring advice from chief auditor Luc Vermeire, dissects the report sharply. First finding: the general justification ('equipment or execution method justifies the price') is not made concrete for Deckx. The report does not specify which equipment or method would justify Deckx's prices for items 281, 282 and 390 — while Deckx's 8 April letter strongly suggests sheet piles must be purchased and depreciated. Second finding: in its note before the Council, POM argues that the spec does not prescribe sheet piles and that other shoring techniques are possible. Verbiest counters: this prima facie ignores that Deckx apparently chose sheet piles. Whether the spec mandated this is technically debatable but irrelevant to whether Deckx's price is normal for the execution it actually contemplates. Third and most pedagogical finding: the administrative file contains a 'price-investigation memo' dated 10 June 2016 — a month after the contested award and after the suspension request was filed. It contains substantive arguments about residual value of the sheets, use beyond four years, high purchase price and resulting depreciation. Verbiest calls this a posteriori reasoning — disregarded. The Council can only review what the contracting authority actually relied on at the time of the decision. The argument that the three contested items represent a small absolute share of the contract is also nowhere in the original report — so it does not weigh either. Conclusion: it is not prima facie established that POM could conclude that Deckx's prices for items 281, 282 and 390 are not abnormal. It follows that it is not established either that the offer was found compliant after a careful, sufficiently reasoned investigation, or that Article 24 of the Law of 15 June 2006 (award to lowest compliant bidder) was correctly applied. The plea is serious to that extent. A second plea, raised only in the pleading note — that Deckx priced a one-sided water-retaining screen while a two-sided one was required — is rejected for lack of substantiation. The Council orders the suspension of the 12 May 2016 award decision. Costs and procedural compensation are reserved given the further proceedings.
Why does this matter?
This judgment is a manual in two directions. For contracting authorities: you can apply Article 87 strictly and refuse a post-opening 'correction' by a bidder, but that does not relieve you of the duty to conduct a reasoned price investigation. When a bidder has admitted in writing that its unit prices miss essential cost components, the regularity check becomes harder, not easier. Generic phrases ('every price is justifiable given equipment or method') do not suffice — you must specifically motivate why this bidder, with this equipment or this method, can deliver at this price. And you cannot patch your reasoning afterwards, post-suspension, with a follow-up price memo: the Council looks only at what was in the decision at the time it was taken. For losing bidders: a written admission by the winner that its price does not add up is gold — preserve those letters and build your suspension argument around the gap between the admission and the reasoning in the award report.
The lesson
Contracting authority, when a bidder writes after opening that it forgot a major cost component in its unit prices: refuse correction under Article 87 KB plaatsing, but then build a price investigation that for each affected item motivates why the original price remains normal. Write in the report concretely what equipment the bidder owns, what execution method it will use, and how that specifically yields the price offered. If your analysis leads you to conclude the price is no longer normal, reject the offer as substantially irregular — that is your duty under Article 95 KB plaatsing and Article 24 of the Law of 15 June 2006. Bidder, if you finish second after opening and the winner admits a price error in writing while the authority then accepts the offer 'as submitted': immediately request the award decision and the full award report, and check whether there is specific reasoning on three elements (equipment, method, price build-up). If not, you have a serious extreme-urgency suspension plea within the 15-day standstill.
Ask yourself
You are reading an award report that, after a price-error admission by the winner, concludes that 'every price is justifiable given the equipment or the execution method'. Ask yourself: does the report specify what equipment this bidder owns or what method it will use for the problem items? Is that method linked to the unit price offered? If not, and you came second: you have an extreme-urgency suspension plea within the 15-day standstill.
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 →