'Spontaneously' correcting a bid upward by 40% is allowed — provided the contracting authority explains why it is not a new offer
The Council of State suspends the award of a public works contract to LECOMTE because the municipality of Meix-devant-Virton accepted that LECOMTE corrected its bid after opening from EUR 119,973 to EUR 167,628 — an increase of nearly 40% — without any single word in the award decision explaining why this qualified as a correctable error rather than a modification of the bid.
What happened?
On 8 February 2018 a tender notice was published for a public works contract for the rehabilitation of the Luse landfill site for the municipality of Meix-devant-Virton. Negotiated procedure with prior publication, one award criterion: price. Seven bids were submitted, including those of Krinkels and Entreprise LECOMTE. After opening, on 28 March 2018 the contracting authority asked LECOMTE for missing documents — including the designation of an authorised landfill, the list of subcontractors, and the annual safety report. LECOMTE was given until 16 April to respond. In its reply of 16 April, LECOMTE submitted the missing documents. And added one sentence at the bottom: 'On rereading our bid, we noticed an error had crept in. Please consider the new schedule attached to this letter, which cancels and replaces the schedule of 9 March 2018.' The new schedule moved the bid from EUR 119,973.16 to EUR 167,628.19 — an increase of EUR 47,655 or nearly 40%. According to later documents the error was in item 6 of the bill of quantities. The bid analysis report noted the price change with a single sentence: 'In addition the company reports that there was an error in its price schedule. A new schedule is attached to the letter. ⇒ General total excl. VAT: EUR 167,628.19. ⇒ General total incl. VAT: EUR 202,830.11.' That ended the discussion. On 9 May 2018 the council awarded the contract to LECOMTE for that amount. Krinkels appealed to the Council of State in extreme urgency. Third plea: the municipality accepted the modification without any motivation — not a word as to why this qualified as a correctable error and not a new offer. The municipality defended itself by arguing that 'the economic operator is not formally required to motivate why it lets its bid evolve' (because that is its economic freedom) and that 'the contracting authority does not have to formulate a motivation in its place'. An acceptable 'spontaneous proposal' of another price, including upwards, would, according to the municipality, even reduce the risk of price changes during execution. The Council parries: the plea does not complain about the absence of a motivation by the bidder, but about the absence of a motivation by the contracting authority as to why it accepted the change. And on that the Council is sharp: 'The decision does not allow one to understand the motives — factual and legal — on which the defendant party relied to accept this correction. It mentions neither the circumstances of the discovery of the error, nor the type of error, nor the item to which it related, nor the impact on the price, nor the reasons why the error can indeed be qualified as such, nor the elements of assessment taken into account by the contracting authority, nor even the legal basis allowing the contracting authority to take the correction into account.' Seven elements absent from a file in which a price change of EUR 47,655 was swallowed without discussion. The third plea is serious. The municipality offered no counterweight in the balance of interests. The Council suspended the execution of the award decision.
Why does this matter?
Many people think a 'rectification' is only problematic when the price goes DOWN — that is where the competitive advantage shows up. This judgment shows that an UPWARD rectification can equally fail, as soon as the contracting authority accepts changes without explanation. The problem is not the direction of the correction, the problem is that the change was accepted without a reasoned check by the contracting authority. The Council provides here a quasi-checklist of seven elements that should appear in every award decision when the winning bid was 'corrected': the circumstances of discovery, the type of error, the item concerned, the price impact, the justification that it really was an error, the assessment elements considered by the contracting authority, and the legal basis on which the correction rests. Any analysis report that meets these seven points virtually rules out this type of suspension. For bid managers: this is an important tool for challenging award decisions in which the winner was 'allowed to remove an error from its bid'. Systematically request the analysis report and check whether the seven elements are present. One or two gaps are not enough — but if six out of seven are missing, as here, you have a strong argument.
The lesson
If as a contracting authority you want to accept a spontaneous price correction from a bidder, motivate at least these seven points in your award report: (1) how the error was discovered, (2) what type of error it is, (3) which item it concerns, (4) the price impact, (5) why it really is an error and not a modification of the bid, (6) on which assessment elements you rely, and (7) the legal provision you invoke. An analysis report that merely records the new total amount and moves on is an open invitation to a suspension — regardless of whether the correction goes up or down.
Ask yourself
Where a bid was modified after opening by 'rectification of an error' — can you, based on the award decision and the analysis report alone, point to each of these seven elements: how the error was discovered, the type of error, the item concerned, the price impact, why it was indeed an error, the assessment elements, and the legal basis? If not: the file is vulnerable to suspension, even if the correction increased the price.
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 →