An 'additional tool' whose cost you leave out of your price gets no second chance
The Council of State refuses to suspend the award of the SPW hosting contract to NRB: ATOS had listed OpenShift in its bid as an 'additional tool' but did not include its licensing cost in the price — that is a substantial irregularity, not an ambiguity in the specification.
What happened?
The Service public de Wallonie launched a services contract in December 2018 for managing its IT infrastructure, split into three lots. Lot 3 covered hosting of applications and websites, with price as the sole award criterion. The specification stated explicitly that 'all costs related to additional tools must be borne by the contractor and integrated into the prices submitted'. Two bidders submitted offers for lot 3: ATOS Belgium and Network Research Belgium (NRB). In its bid, under section 5.1.2.3 'Tools needed to operate the contract', ATOS listed a series of tools, including OpenShift. In a Q&A round under articles 34, §2 and 35 of the 2017 Royal Decree on Award, ATOS confirmed in writing that 'the corresponding costs are therefore not in the price' because 'licences depend on the capacity needed to deploy solutions on the platform'. On 22 May 2019 the Walloon Region awarded lot 3 to NRB and rejected ATOS's bid as substantially irregular under article 76, §3: ATOS had not included the OpenShift cost in its price as the specification required. ATOS filed an extreme-urgency suspension request on 13 June 2019, with one plea in four parts, mainly arguing that the contested clause was 'contradictory': either the bidder bears the cost or the cost is in the price — not both. Witty but untenable. The Council clarifies: 'borne by the contractor' means those costs cannot be invoiced separately to the Walloon Region — they must be both borne by and incorporated into the contractor's price. No contradiction. Moreover, the clause sits under the heading 'Start-up activities – transition into the contract', which expressly says the contractor 'must amortise' those costs in the monthly lump-sum fee. ATOS never raised any question during the bidding phase — even though article 81 of the Royal Decree provides a ten-day window for exactly that. And OpenShift was prima facie not a 'new tool proposed during execution' (which the authority can accept or refuse), but an 'additional tool' that ATOS itself presented in its bid as part of its overall solution. No manifest error of assessment, no breach of the duty to state reasons. Suspension dismissed, ATOS ordered to pay €920 in costs.
Why does this matter?
In IT contracts where the contractor can propose its own tooling, this is the classic trap: you mention a tool as part of your solution but leave the licensing cost out, either because it depends on usage or in the hope it will be billed separately later. In a price-only contract that is a time bomb: you look technically stronger than the competitor but you are cheaper because you concealed a cost — precisely what article 76, §3 brands as substantial irregularity. For contracting authorities the judgment is a manual: state explicitly which costs must be in the price, and place that clause under a meaningful heading (here: 'Start-up activities' — a strong contextual signal).
The lesson
If you propose your own additional tools in an IT or services contract, treat them as a mandatory price element: include the licensing cost in the price — based on a documented capacity estimate if needed — or drop the tool from your solution. Unsure how a clause should be read? Send a written question within the article 81 deadline; if you don't, you cannot later invoke a 'contradictory specification'.
Ask yourself
Does your bid have a section titled 'additional tools', 'extra software' or 'optional features'? Verify for every tool that its cost is explicitly part of a price item. No price item = substantial irregularity.
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 →