Adding a correction note to your bid isn't post-opening regularisation — it's how the system is meant to work
The Council of State rejects VIABUILD's appeal: KRINKELS had attached an explanatory note 'Errors and/or omissions' to its bid from the moment of submission to correct certain items — a procedure expressly provided for in article 83, §2 of the 2011 Royal Decree, not a prohibited post-opening modification.
What happened?
The municipality of Waterloo launched an open tender for road works on the chaussée de Bruxelles. Six bidders submitted on 19 November 2015. KRINKELS appeared lowest at €965,479.65, followed by VIABUILD SUD at €978,898.08. But attached to KRINKELS' bid — from submission — was an 'Errors and/or omissions' note signalling that for several items the reference to Qualiroutes did not include the asterisk normally used to indicate non-standard items (here, due to the black colour requirement deviating from QUALIROUTES). KRINKELS' note provided the price supplements, raising its total to €976,529.18. The municipality awarded the contract to KRINKELS at the controlled amount. VIABUILD challenged this. Its argument: the price adjustment after opening was a prohibited modification of the bid. The Council ruled differently. The 'adjustment' was nothing more than the application of article 97, §2 of the 2011 Royal Decree: the contracting authority must verify and rectify corrections a bidder has made under article 83, §2. KRINKELS hadn't made these corrections after opening — the explanatory note was part of its bid from submission. Nothing indicated post-opening modification or regularisation of a substantial irregularity. The appeal was rejected, costs ordered against VIABUILD.
Why does this matter?
This judgment is the counterpoint to cases where a contracting authority 'corrected' changes a bidder shouldn't have made. Here KRINKELS got it procedurally right: it used the article 83, §2 mechanism (now article 79, §2 under the 2017 Royal Decree) to attach an explanatory note to its bid for errors and omissions in the bill of quantities. Because that note formed part of the bid at submission, there was no question of post-opening regularisation. For bidders: use this instrument deliberately and carefully when you spot errors. For contracting authorities: the evaluation report must clearly show that any 'adjustments' rest on a pre-submitted note.
The lesson
If you spot an error or omission in the bill of quantities, attach an explanatory note to your bid that explicitly announces and justifies the correction (article 83, §2 of the 2011 Royal Decree, or article 79, §2 of the 2017 Royal Decree for tenders published after 30 June 2017). When the note is part of your bid from submission, a competitor cannot later claim your bid was unlawfully regularised. For contracting authorities: ensure your evaluation report explicitly references the note when you adjust a bid.
Ask yourself
Has the bidder whose prices you 'adjusted' attached an explanatory note to their bid under article 83, §2 (old) or article 79, §2 (new)? Is that note explicitly mentioned in your evaluation report? If not, there's a risk the adjustment will be reclassified as prohibited post-opening modification.
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 →