Claiming in a pre-litigation letter that the winner used 'wrong measurements' can backfire — unless you put it in your application
The Council reopens the debate in VMG-De Cock's challenge to the award to Himpe (€2,671,181 for the new local services centre De Mantel in Zwijnaarde) and rejects OCMW Ghent's argument that VMG's own bid would be irregular because she based her price on a different undermining width than the bill of quantities — a legal appreciation in a 26 October 2016 letter does not bind the Council.
What happened?
OCMW Ghent awarded the construction of the De Mantel local services centre in Zwijnaarde to NV Algemene Ondernemingen Himpe — lowest of nine bidders at €2,671,181.62 ex VAT, followed by VMG-De Cock at €2,675,000.00. After complaints from VMG, the OCMW withdrew its 9 June 2016 award decision and conducted a price review. The review focused on Himpe's item 11.92.2 'Undermining – concrete', which was 37% below the average unit price. Himpe justified its price by referring to an undermining width of 80 cm, its own equipment, and good site accessibility. The OCMW found this credible and re-awarded to Himpe on 13 October 2016. VMG then wrote a sharp 26 October letter: drawings 7/29 details 20 and 22 show the width is 35 cm, not 80 cm — Himpe's bid would therefore be substantively irregular. VMG took the case to the Council of State, but in its application she did NOT maintain that argument. Her grounds focused on Himpe's price justification, the absence of price review on other unit prices, and breach of the duty to state reasons. The OCMW returned the serve: in her 26 October letter VMG had stated she had priced item 11.92.2 based on 35 cm — if the correct measurement is 80 cm, VMG's own bid would be substantively irregular and her application inadmissible for lack of standing. The Council refused this argument for three reasons. One: pre-procedural correspondence does not bind the applicant — only the application and pleadings do. Two: the 35/80 cm question was a legal appreciation by VMG, not a fact, and the Council is not bound by it. Three: VMG had filled in €1,000/m³ × 51.8 m³ = €51,800 for the item — well within the OCMW's price-review thresholds (less than 30% below or 50% above the average). From an 'unsuspect' price one can hardly deduce that the bidder priced based on a different width than that in the bill of quantities. The Council added that art. 83 §2, 2° of the Royal Decree on Procurement (correcting estimated quantities) is an option for the bidder, not an obligation. The provisional conclusion: VMG's bid cannot be declared irregular on the grounds OCMW Ghent put forward. Because the auditor's report was limited to that single point, the Council reopened the debate and ordered a supplementary report.
Why does this matter?
This intermediate ruling is interesting on two counts. First, it shows the danger of legal claims in pre-litigation correspondence: contracting authorities like to fire an applicant's own ammunition back at her ('you say the winner was wrong — then so are you'). The Council clarifies that such positions only bind to the extent they appear in the application itself. Second, it confirms that the thresholds a contracting authority uses to trigger deeper price review (here ±30% under, +50% over average) also act as a 'safe harbour' for bidders: stay within them and your price cannot be branded irregular without concrete evidence of a flawed assumption. For litigators: ensure every argument you intend to rely on actually appears in your application or pleadings, and be cautious with dramatic claims in advance letters you may want to drop later.
The lesson
If you intend to challenge an award decision, limit your claims in pre-procedural correspondence to what you will actually plead. A letter accusing the winner of 'substantive irregularity' based on a particular reading of the tender documents can backfire — the other side will ask why you priced on a different reading. For contracting authorities: don't be lured by the 'you-too' reflex. An applicant is bound in court only by what appears in her application, not by her pre-litigation complaint letters. A unit price that stays within your own review thresholds (e.g. ±30% under, +50% over average) cannot easily be used as evidence of a flawed assumption without concrete substantiation.
Ask yourself
Does a disappointed bidder write a letter before going to the Council of State accusing the winner of 'substantive irregularity'? If his argument is a reading of the tender documents that would imply his OWN bid is also irregular, you cannot simply use that as a defence before the Council — only if he repeats it in his application. Until then his 'legal appreciation' does not bind the Council.
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 →