An EUR 2,681 omission made the difference between winning and losing — and the Council of State sided with the bidder who reported it
The Council of State dismisses Bekaert's appeal against the award to Wyckaert for the construction of a police building, and confirms that the duty to report under article 81 of the Royal Decree of 18 April 2017 applies only to insurmountable defects in the contract documents — not to small omissions in the bill of quantities that a diligent bidder spots only when pricing.
What happened?
In early 2018, the inter-municipal association SOLVA, on behalf of the municipalities of Erpe-Mere and Lede and the Erpe-Mere/Lede police zone, launched a contract for the construction of a new police building: shell, finishing and techniques, excluding landscaping. Open procedure, one award criterion: lowest price. Estimated at EUR 5,085,546.86 excl. VAT. On 14 March 2018, bids were opened. Five tenders — the two lowest from Bekaert Building Company (EUR 5,090,816.23 excl. VAT) and Algemene Ondernemingen Robert Wyckaert (EUR 5,133,068.10 excl. VAT). Both bidders had proposed various adjustments to the bill of quantities and reported omissions — as permitted under article 79 § 2 of the Royal Decree of 18 April 2017. Wyckaert made two observations that determined the final ranking. On item 42.45 ('aluminium cladding panels'), Wyckaert proposed a downward correction: according to it, the detail drawing for the reception desk wall did not show aluminium but solid panel. At the same time it reported an omission: the bill of quantities contained no separate item for that solid panel. The omission note estimated less than 15 m² of wall panel, for EUR 2,681.58. After processing all adjustments — downward, upward and additions for omissions (where omission items for which a bidder had not given a price were calculated under the formula of article 86 § 3) — Wyckaert came in at EUR 5,092,633.75 excl. VAT, just under EUR 2,000 below Bekaert. The contracting authority found no abnormal prices and awarded the contract to Wyckaert on 8 May 2018. Bekaert appealed in extreme urgency. Three pleas, all rejected. First plea: Wyckaert should have reported its observations on item 42.45 at least ten days before the opening session under article 81, and by failing to do so acted 'speculatively' — abuse of the omission mechanism solely to influence its own ranking. The Council rejects this with an important clarification: article 81 concerns 'errors or omissions of such a nature that they make pricing or comparison of bids impossible' — not just any defect. The report to the King with the Royal Decree gives as examples 'missing reinforcement data preventing calculation of steel quantities for a reinforced concrete structure' or 'a substantial difference between the Dutch and French versions of the contract documents'. The case law Bekaert itself relies on concerns documents 'so deficient that bidders were apparently expected to erect a building without floor or roof'. In other words, article 81 covers insurmountable defects that make pricing impossible or yield incomparable bids. The omission of 15 m² of solid panel for EUR 2,681.58 on a contract of over 5 million euros is clearly not an insurmountable defect. It is a normal application of article 79 § 2 — a diligent bidder spots it during pricing and reports it. The Council adds that the system 'aims precisely to reward bidders who put effort into reviewing the bill of quantities and contract documents, over those who do not'. Bekaert can hardly complain of speculation either, because its own bid contained similar adjustments to items 54.32.72.d and 54.31.61.f. That the price gap between the top two bids has become very small (less than EUR 1,000) is, according to the Council, not the result of the adjustments themselves but of the factual proximity of the two bids. An omission of small material and financial impact carries no aggravated reporting duty. Second plea: the omission for the masonry support consoles (item 5.12.7) should never have been reported as an omission, because 'the rules of the trade' imply that consoles are included in the brickwork item (22.21.20). The Council refuses to settle this technical battle without expert advice — which cannot be fitted into extreme urgency proceedings — and observes that item 22.21.20 makes no mention of consoles, while the stability item 5.12.7 does. Prima facie the acceptance of the omission is therefore not careless. Third plea: SOLVA only partially accepted Bekaert's own downward correction on item 6.11 (fire-resistant paint), with insufficient motivation. Again the Council declines a technical debate over surface to be painted without expertise. Bekaert mainly raises a bare assertion, not a substantiated factual criticism. None of the three pleas is serious. Application dismissed.
Why does this matter?
For bidders on works contracts with a bill of quantities, this judgment is important because it sets a tight perimeter around article 81 of the Royal Decree of 18 April 2017. The common misconception — 'if you spot an error before opening, you must report it' — is wrong. The reporting duty under article 81 applies only to insurmountable defects that make pricing impossible or lead to incomparable bids. Anything below that threshold (small omissions, local inaccuracies, gaps of a few thousand euros on a multimillion contract) is governed by article 79 § 2: the bidder spots it during pricing and resolves it via an upward or downward correction, or via an omission note. For contracting authorities: the correction system of article 79 § 2 — combined with the omission formula of article 86 § 3 — is intentionally designed to reward diligent bidders. That such a correction can flip the ranking on a 5 million euro contract when the top two are within EUR 1,000 of each other is a consequence of that competition, not an irregularity. It is sufficient that the contracting authority technically reviews the corrections thoroughly and applies the formulas of article 86 correctly. For bid managers: speculating with omission reports in the hope of a better ranking is not a strategy the Council will reject, AS LONG AS the report is factually grounded. This case law does warn: look for observations that are genuinely an omission or error, not interpretive grey zones — there the contracting authority can rely on technical expertise against you.
The lesson
An omission report or a downward correction on a bill of quantities in the bid itself is NOT a circumvention of article 81 of the Royal Decree of 18 April 2017. Article 81 only covers insurmountable defects (a building without floor or roof, missing reinforcement data, language errors in driving documents). For everything else, article 79 § 2 applies: a diligent bidder may — and even should — correct or supplement errors and omissions in the bill of quantities in its bid, even if this favourably affects its ranking. For contracting authorities: trust the system and apply the formulas of article 86 carefully.
Ask yourself
If a competitor proposed corrections to the bill of quantities in its bid that favourably influence the ranking: would a reasonable contracting authority qualify the same defect as an 'insurmountable defect' (a building without roof level)? If not, it falls under article 79 § 2 and a duty to report before opening (article 81) does not apply — a suspension based on that ground will fail.
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 →