EUR 1,904 for one metre of pipe is obviously wrong — but 'we took the average of the competitors' is not a valid correction
The Province of Hainaut corrected one unit price in ENVISYS's bid from EUR 1,904.40/m to the average of the other bidders (EUR 26.30/m), bumping ENVISYS from fourth to first place — the Council of State suspends the award because the average of competitors does not prove what ENVISYS actually intended.
What happened?
On 12 October 2018, the Province of Hainaut publishes an open procedure in the Belgian tender bulletin for the heating renovation under the UREBA programme at the Condorcet Higher School in Saint-Ghislain, Applied Arts category. The sole award criterion is price. At the opening session of 20 November 2018 six bids are received. AXO has the lowest price, ENVISYS initially comes fourth. During price scrutiny the contracting authority spots a striking unit price in ENVISYS's bid: for item 12.1.2 (multilayer sanitary pipes DN20, presumed quantity 25 m) ENVISYS quotes EUR 1,904.40 per metre, while the other selected bidders average EUR 26.30 per metre. The Province does not treat this as a possibly abnormal high price but as a 'material error' under article 34 § 2 of the Royal Decree on procurement of 18 April 2017, and corrects the price unilaterally to EUR 26.30 — the average of the offers of the other selected bidders. The reasoning points to the logic of the bid itself: ENVISYS quoted EUR 23.00 for DN15 and EUR 59.80 for DN40; for the intermediate DN20 the price must therefore lie between those two values. After this correction ENVISYS's total drops from EUR 580,322.40 (excl. VAT) to EUR 533,999.90 (excl. VAT). The new ranking puts ENVISYS in first place, AXO second (EUR 550,769.88), followed by CFA (EUR 557,707.58), THERSA (EUR 568,807.91), SOTRELCO (EUR 600,713.40) and CELSIUS (EUR 631,253.08). On 20 December 2018 the Province awards to ENVISYS. AXO files an extreme-urgency suspension on 8 March 2019 with as main argument: this is not a 'material error' under article 34, this is an apparently abnormal price under articles 35-36, and that procedure obliges the contracting authority to ask the bidder for justification. The Province defends itself extensively: a price of EUR 1,904.40 is physically impossible for a pipe of that calibre (a DN20 must be cheaper than a DN40), ENVISYS's true intention follows logically from its own pricing for DN15, DN40 and DN50, and the contracting authority does not get to choose between article 34 and articles 35-36 — article 33 expressly states that the correction of material errors precedes price scrutiny. Moreover, the Province says, to avoid giving ENVISYS an advantage it relied on the average of the other bidders, an objective fact safeguarding equal treatment. The Council of State (Counsellor Nathalie Van Laer, acting president) follows the Province only halfway. Yes, article 34 of the 2017 RD allows correction of arithmetic errors and 'purely material errors', but this power is an exception to the principle of inviolability of bids and must be strictly interpreted. A 'material error' is one that demonstrably leads to a result different from what the bidder intended, and whose existence is not in dispute. When correcting, the authority must seek the bidder's actual intention for the item concerned. Up to that point the Council follows the Province: given the structure of ENVISYS's bid and the unit prices of the other bidders, the Province committed no manifest error in concluding that ENVISYS intended to set the DN20 price between EUR 23 (DN15) and EUR 59.80 (DN40). BUT — and here the reasoning shifts — 'no other element in the administrative file or mentioned in the contested decision allows a more precise determination of the bidder's actual intention for this item. In particular, nothing establishes that this actual intention was to propose a unit price equal to the average of the other bidders' prices for this item.' Even assuming the error qualifies as purely material, the Province does not show that its chosen correction matches the bidder's actual intention. The plea is therefore serious. The balance of interests also tilts in favour of AXO: the Province cites no negative consequences of suspension that would outweigh its advantages. The Council of State suspends the award to ENVISYS. Costs are reserved.
Why does this matter?
This is a fundamental ruling on the boundary between article 34 (correction of material errors) and articles 35-36 (abnormal prices) of the procurement Royal Decree. Article 34 looks attractive to a contracting authority — no adversarial debate with the bidder, quickly settled. But the Council of State puts a clear lock on it: if the correction involves any element of estimation, it can only be substantiated within a band by the bidder's own offer. The average of competitors as anchor is NOT proof of what ENVISYS intended. For a bidder whose competitor benefits from a correction this is a powerful argument: ask the contracting authority which concrete element from the corrected bidder's own offer justifies the exact chosen value — not the band, but the exact value. For the contracting authority the message is: if you cannot find within the bidder's own offer a tight justification for the exact correction, you must either ask for clarification (article 34 § 2 paragraph 2), or apply the unit price (paragraph 4), or exclude the bid as irregular.
The lesson
When correcting a 'material error' under article 34 of the procurement Royal Decree of 18 April 2017: write down for each corrected item which concrete element in the bidder's own offer (a related item, a pattern in their pricing, a flat rate elsewhere) justifies the chosen value. The average of other bidders, the market average or your own estimate are NOT proof of that one bidder's actual intention. If no concrete element exists, ask for clarification — or apply article 34 § 2 paragraph 4 (declare the unit price applicable, or exclude the bid).
Ask yourself
Has your contracting authority recently 'corrected' a competitor's unit price under article 34, with the consequence that the competitor moved to first place? If so: can you find in the award decision or report, for that specific item, a reference to elements in their OWN offer that justify the exact chosen correction value — not just a band?
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 →