An unauthorised quantity change can't be 'corrected' — the bid must be excluded
The Council of State suspends the BIM's award to BDO because BDO had unilaterally reduced the estimated quantity in the inventory without the specifications authorising it — the contracting authority should have excluded the bid as substantially irregular instead of 'restoring' the original quantity under article 86.
What happened?
The Brussels Environment Institute (BIM) launched a five-lot tender for coordination of the Brussels Programme for the Circular Economy (PREC). Lot 5 covered consultancy for the 'Sustainable Construction' theme. The inventory specified an estimated quantity of 172.8 person-days. Two bidders submitted: BDO Management Advisory at €97,707.50 incl. VAT, and CERAA at €135,907.20 incl. VAT. BDO had unilaterally reduced the quantity from 172.8 to 120 person-days in its inventory — based on a 2.5-day-per-week calculation — without attaching the explanatory note required by article 79, §2 of the 2017 Royal Decree. The BIM's evaluation report deemed the change 'insufficiently substantiated', applied article 86, §1 to bring the quantity back to 172.8 days, and BDO's total jumped from €97,707.50 to €140,699.50. Yet BIM still ranked BDO first (98.64/100) versus CERAA (92/100) and awarded the contract to BDO at the corrected amount. CERAA filed for suspension under extreme urgency. Its argument: article 79, §2, 2° only allows quantity corrections when the specifications expressly authorise them — which was not the case here. BDO's change was therefore a substantial irregularity warranting exclusion, not correction. The Council of State agreed. The reasoning is clear: article 86 (the contracting authority's correction power) is derivative of article 79, §2 (the bidder's correction power). The contracting authority can only rectify changes the bidder was entitled to make. Here BDO had no right to change the quantity — therefore article 86 could not be invoked. The correct response was exclusion. Comparing an irregular bid with a regular one vitiated the entire comparison procedure. The award was suspended.
Why does this matter?
Many contracting authorities assume article 86 gives them broad latitude to fix inventory errors. This judgment sharpens the structure of the system: article 86 is a derived power of article 79, §2 — not an autonomous correction power. If a bidder makes a change it was not entitled to make under article 79, §2, the bid is substantially irregular and must be excluded. 'Restoring the original quantity' is not an alternative. For bidders: read carefully whether the specifications allow you to correct quantities — if not, do not touch them.
The lesson
As a contracting authority: before 'correcting' a quantity change in a bid via article 86, first check whether the specifications authorised bidders to correct that quantity (article 79, §2, 2°). If not, the bid is substantially irregular and must be excluded. 'Restoring' the original quantity to allow comparison violates the principle of equality: you would have two bidders who didn't submit under the same conditions.
Ask yourself
If a bidder has changed an estimated quantity in their inventory: do the specifications explicitly authorise this (art. 79, §2, 2°)? Did the bidder attach an explanatory note? Is the change at least 10%? If any of these three conditions is not met, the bid is substantially irregular — exclude, do not correct via article 86.
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 →