The price on the bid form and the price in the award report differed by 60,000 euros — and nobody explained why
The Council rejects Monument Vandekerckhove's appeal against the award to PPR-Vibed (€1,752,813), but rules that the duty to state reasons was breached because the contracting authority failed to explain why PPR-Vibed's price in the award report was suddenly €59,469 lower than at the opening session — and orders the Flemish Community to pay costs.
What happened?
The Flemish Community tendered the renovation of the plant palace at the Meise Botanic Garden. The summary measurement schedule was missing one item: '90.26.40 paving – broken stone', covering the renovation of outdoor surfaces with reclaimed natural stone tiles. Bidders flagged this before the opening; a corrigendum confirmed the omission and asked them to price the item separately. Three bids came in: Monument Vandekerckhove, PPR-Vibed, and DSV. At opening on 10 May 2016, prices were read out from the bid forms — Vandekerckhove was lowest. But in the 14 July 2016 award report, PPR-Vibed's 'opening' price was suddenly €59,469 lower (€1,727,766 instead of €1,787,236). With that revised ranking, PPR-Vibed became lowest regular bidder and was awarded the contract for €1,752,813. The award report gave no explanation. After Vandekerckhove asked, a 14 October email mentioned only 'a first check' and the 'submitted measurement schedule' — no reference to the missing item. Vandekerckhove filed for annulment. Only in its statement of defence did the Flemish Community explain: PPR-Vibed had included the price for the missing item in its bid form total (so its total was higher), while Vandekerckhove had filled in the price in its measurement schedule but had NOT added it to the bid form total. To make the bids comparable (equality principle), the authority subtracted the missing item's price from both totals first, then added it back during the omissions review. The Council confirmed via the confidential file that no manipulation occurred. The 'unauthorised bid amendment' argument failed. But on the duty to state reasons the Council was sharp: when the awarded bidder was NOT lowest at opening, the award report MUST clearly explain why they became lowest after review. That was missing here. The plea was upheld on that point but did not warrant annulment — yet the Flemish Community was ordered to pay all costs (€200 docket fee + €700 procedural indemnity).
Why does this matter?
Contracting authorities should reread this before finalising any award report. The substantive decision was correct — the price correction was technically clean — but the failure to explain it in the award report cost the authority a court case and a costs order. For bidders, the inverse lesson: an unexplained price drop between opening and award report is a legitimate complaint, and even if you lose on the merits you can recover costs if the reasoning was deficient. For anyone bidding on a tender with measurement schedule gaps: do it the way PPR-Vibed did — include the price in your bid form total AND flag the gap explicitly, otherwise this exact type of after-the-fact dispute arises.
The lesson
If the awarded bidder was NOT lowest at opening but became lowest after review, the award report must concretely explain how that ranking shift occurred — which items were corrected, with what amounts, and why. A bare statement that 'a first check' produced a different total does not satisfy the formal duty to state reasons. For bidders: if you spot a gap in the measurement schedule, include your price for that item BOTH in your measurement schedule AND in your bid form total — otherwise expect downstream disputes about which figure is binding.
Ask yourself
Does the awarded bidder's price in the award report differ by more than 1% from the price in the opening minutes? Then the award report must show, per corrected item: which item, what amount, and why the correction was needed. If it doesn't, the award is exposed to a formal-reasoning challenge — even if the correction is substantively sound.
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 →