A 'purely material error' is not just any error — if the contracting authority must guess to correct it, it falls outside article 96 §1
Veolia had wrongly allocated biomass cogeneration costs to the central boiler in its offer for the ULiège HVAC maintenance contract; the Council of State holds that such a misallocation is not a 'purely material error' when the contracting authority cannot redistribute without speculation — the extreme-urgency suspension is rejected, Cofely keeps the contract.
What happened?
On 14 June 2017 the executive board of the University of Liège (ULiège) decided to launch a service contract: operation, total guarantee and energy efficiency improvements for the HVAC installations of the Liège campuses and the shared CHU-ULiège installations on the Sart-Tilman. Restricted procedure, ten-year term (until November 2028). The notice was published on 20 June in the Belgian official journal and on 24 June 2017 in the OJEU. Two candidates were retained: Veolia and Cofely Services. On 13 December 2017 ULiège approved the specifications and invited both to submit offers. Offers received on 11 June 2018. ULiège asked clarifying questions on 22 June and 24 July 2018, including on the cost split between biomass cogeneration and central boiler (lines 33 and 34 of the price schedule for building B10) and on personnel costs. Veolia replied on 8 August. On 19 September 2018 ULiège declared Veolia's offer substantially irregular for four reasons, including the wrong cost allocation: part of the biomass cogeneration costs (turbine, air condenser) had been entered on the 'central boiler' line. The contract was awarded to Cofely Services. Veolia filed an extreme-urgency action with the Council of State on 9 October 2018. The first ground attacked the misallocation reasoning. Veolia argued three things: (1) the error is material and evident — ULiège itself spotted it and could thus identify the specific cogeneration costs; it should have corrected the error under article 96 §1 of the 2011 Royal Decree or asked for a precision under article 96 §4; (2) subsidiarily: the assumption of a 'shutdown' of the cogeneration — invoked by ULiège to justify the importance of separate cost identification — is unrealistic, since the specifications themselves exclude it (article C.10.2: 'The Operator may not propose energy savings by stopping the biomass cogeneration'); (3) further subsidiarily: knowing the cost per installation is not decisive for the award decision — variations in installations are typically dealt with through amendments. The VIth Chamber (David De Roy, acting president) thoroughly rejects the ground. First branch: article 96 §1 — the option to correct 'purely material errors' is a derogation to the principle of intangibility of offers after opening and must be interpreted strictly. ULiège had explained in its observations note that besides the obvious 'air condenser' and 'turbine' items, parts of the 'Regulation' and 'Electricity' costs also had to be re-allocated to cogeneration — but Veolia had not specified in what proportions, nor whether those costs were even fully included in the offer. Veolia did not contest that factual finding at the hearing. An error whose correction forces the contracting authority into speculation (a 'guess' on allocation) cannot qualify as a purely material error. Second branch: that the cogeneration would supposedly never be shut down is — under extreme-urgency review — a mere supposition that Veolia does not sufficiently substantiate; moreover, the discretion to require two separate cost lines lies within the contracting authority's appreciation power. Third branch: same discretionary appreciation; the second criticism (that ULiège should have done the same verification for other installations) is unsubstantiated. The first ground is not serious. Since this motive alone supports the rejection on the merits, the second ground (against another motive) need not be examined. The extreme-urgency suspension is rejected, costs reserved.
Why does this matter?
The concept 'purely material error' is one of the few life-rings for bidders against irregularity rejection: if your error qualifies, the contracting authority must correct it or invite precision under article 96 §1 or §4 of the 2011 Royal Decree (and the functionally equivalent article 34 of the 2017 Royal Decree under the current regime). But this case sharpens the limits: as soon as the correction forces the contracting authority into substantive assumptions about the bidder's true intent — for example, 'how do I split this €X between item A and item B?' — you leave the territory of pure material error and enter that of modification of the offer. Modifying an offer after opening is forbidden. For bid managers this means: complete price schedules conscientiously, line by line, with clear items — especially when the specifications require splitting costs between linked but distinct installations (cogeneration versus central boiler, two separate technical units). For contracting authorities: explain in your specifications why you require split costs (e.g. 'to allow removing one installation from the contract by amendment') — that justification helps to protect your appreciation room. There is also a difference between article 96 §1 (the contracting authority must correct) and §4 (the authority may invite precision, without modifying the offer). Both have limits.
The lesson
Before relying on article 96 §1 of the 2011 Royal Decree (or the equivalent article 34 of the 2017 Royal Decree) as a defence against rejection: ask yourself whether your 'error' can be corrected without the contracting authority having to guess your real intent. A wrong number in a simple sum = yes. A wrong allocation between two technical items where the correct distribution remains unclear = no. In that second case only article 96 §4 (invitation to precision) remains — but that lies within the contracting authority's discretion and the precision may not modify the offer. As a bid manager: be careful when filling price schedules with multiple items per installation, especially when the specifications require splits.
Ask yourself
You notice after opening that your offer contains an error in the price schedule. Assessment: (1) Can the error be corrected without the contracting authority having to guess your true intent (e.g. a summation error, a shifted cell)? Then article 96 §1 (purely material error) applies and the authority must correct. (2) Is the error an allocation issue requiring redistribution between several items where the correct proportions are unclear from your offer? Then you are outside §1 and depend on a voluntary invitation to precision under §4 — no entitlement. (3) Why was the split required? An operational reason in the specifications (e.g. possible exclusion of one installation, contract management) reinforces the contracting authority's discretion to be strict.
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 →