'Correcting' a contradiction in your bid after you've seen the competitors' prices is not a material error — it breaks the equal-treatment principle
The Council of State suspends the re-award to ETS BERTRAND, because the city of Philippeville treated a contradiction in its bid (cover letter 'excl. VAT', form '€ incl. VAT' for the same figures) as a 'purely material error' — while the bidder only sent its 'clarification' after reading OCTA+'s prices in the first award decision.
What happened?
On 25 June 2018 the city of Philippeville published a joint open procurement for the supply of fuel and lubricants for 2019-2021 — three lots (heating fuel, vehicle fuel, lubricants) for the municipal buildings, church fabrics and the autonomous municipal authority. The award criterion was price, expressed as a discount (ristourne) on the official ministry-of-economy reference price. The specifications stated on page 5 that the bidder had to express its discount 'in euros, excluding VAT', but the offer form itself read 'reduction per litre of ……….. € incl. VAT' — a contradiction in the contract documents that no bidder flagged before opening under article 81 of the Royal Decree of 18 April 2017. Three bids came in on 7 August 2018: OCTA+ ÉNERGIE, ETS BERTRAND COMBUSTIBLES and EUROP OIL. On 21 August the executive board awarded lots 1 and 2 to OCTA+ at €0.0645 incl. VAT and €0.1800 incl. VAT per litre, and lot 3 to EUROP OIL for €3,996.70 ex VAT. ETS BERTRAND lost. The award decision — including the winning prices — was notified by registered mail and e-mail to all bidders on 22 August. On 3 September 2018 — twelve days after that notification — ETS BERTRAND wrote to the city: their figures should be read as ex VAT, not incl. VAT, in line with a cover letter of 1 August attached to their bid. Read that way they were cheaper than OCTA+: €0.0684 ex VAT for lot 1 (versus €0.0645 incl. VAT) and €0.1815 ex VAT for lot 2 (versus €0.1800 incl. VAT). On 6 September the contracting authority drew up a new evaluation report, and on 11 September the executive withdrew its first award and re-awarded lots 1 and 2 to ETS BERTRAND, citing article 34 of the Royal Decree of 18 April 2017 — correction of a 'purely material error' — and arguing that the error was so flagrant that the original award would otherwise risk annulment for manifest error of assessment. OCTA+ filed an extreme-urgency suspension request. Chamber president Imre Kovalovszky cut to the heart of the matter. ETS BERTRAND's bid contained an internal contradiction: the offer form for each lot listed a discount '€ incl. VAT', while the cover letter showed exactly the same figures marked 'excl. VAT'. Reading the bid, you simply could not tell whether the discount was VAT-inclusive or VAT-exclusive. That uncertainty went to the price and therefore to 'the bidder's commitment to perform the contract under the foreseen conditions' — a substantial irregularity under article 76 §1 of the Royal Decree of 18 April 2017. The Council added the decisive timeline: ETS BERTRAND only resolved the contradiction on 3 September, after the 22 August notification in which it could read its competitors' prices and therefore the impact of the VAT-inclusive/exclusive choice on its ranking. The contracting authority could not, without breaching equal treatment between bidders, base a new award on a clarification given by a bidder only after seeing that without it he loses. The plea was found serious, and the suspension extends to the entire withdrawal-and-re-award decision of 11 September — including lot 3 (lubricants) for EUROP OIL, since it was contained in the same executive decision.
Why does this matter?
For bid managers and procurement officers this judgment is a warning in two directions. For bidders: an 'oversight' or contradiction in your own bid documents cannot be saved by sending a later note that picks the most favourable reading — certainly not after you have read your competitors' prices. The equal-treatment principle forbids it. The only safe path is an unambiguous, complete bid at the moment of submission, and if you doubt the contract documents themselves you must flag it before the opening date under article 81 of the Royal Decree of 18 April 2017. For contracting authorities: never lightly classify a correction as a 'purely material error' when the 'fix' turns a losing bidder into a winner after he has read the others' prices. Article 34 requires that it really be an arithmetic slip or a mere transcription loss — not an interpretive choice that affects ranking. Stretching this rule risks losing the entire withdrawal-and-re-award decision, with all consequences for planning, budget and reputation.
The lesson
If, after notifying a first award decision, you find a losing bidder spontaneously coming back with a 'clarification' that suddenly makes him cheaper than the first-ranked: do not automatically withdraw the first decision. Ask yourself one question — could that bidder already know the competitors' prices when he sent his 'clarification'? If yes (and after a standstill notification this is almost always the case), then a substantive correction is a breach of equal treatment — no matter how sincere the 'material error' looks.
Ask yourself
You are about to withdraw a first award decision based on a later 'clarification' from a bidder: did that clarification come in before the opening of the bids, or only after the first award was notified to all bidders together with the competitors' prices?
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 →