You can't 'tailor' the gap-filling formula to save your preferred bidder
The Council of State suspends the award of the Boom artificial turf contract because AGB Plus replaced the gap-filling formula of article 86, §2 of the Royal Decree on Award with its own variant — and didn't even establish that all bidders understood item 71 the same way.
What happened?
The Autonomous Municipal Company Boom Plus launched in April 2019 a works contract for five artificial turf pitches, awarded through an open procedure. Four bids came in: Lesuco (chosen bidder), Sportinfrabouw, Scheerlinck and Stadsbader. Award criteria: price (45%), quality (45%), maintenance contract (5%), warranty (5%). The bill of quantities had four maintenance items: item 71 (maintenance during warranty period, lump sum) and 72-74 (maintenance contracts per pitch, per year). On 30 April 2019, AGB Plus awarded to Lesuco. Sportinfrabouw protested: Lesuco had left item 71 blank — substantially irregular. On 14 May, AGB Plus withdrew the award. On 24 May, AGB Plus re-awarded to Lesuco with an 'improved award report': instead of rejecting the bid, it applied the gap-filling formula of article 86, §2 of the Royal Decree on Award. But — and there's the rub — not as written. The specification said the maintenance contract runs 'as long as the warranty on the artificial turf is in force' (5-year minimum), not the FIFA warranty period (3-year minimum). AGB Plus calculated factor L (the average of prices submitted by other bidders for item 71) not directly, but by first dividing each price by the number of years of FIFA warranty offered by that bidder — to obtain a 'unit price per year of maintenance'. Sportinfrabouw filed an extreme-urgency application on 11 June 2019. The Council cracks two fundamental assumptions of AGB Plus. First: the contracting authority claimed 'the scope of the maintenance obligation is fixed' and the bids therefore comparable — but the bids show that prices for item 71 differ widely among bidders, and the definition AGB Plus retroactively gave to item 71 (lump sum for maintenance during warranty proportional to warranty length) cannot readily be derived from the specification — it cannot even be excluded that the chosen bidder had split the price for item 71 across items 72-74. Prima facie, the bidders did not understand item 71 uniformly. Second: the correction tied the unit price to the FIFA warranty, but the specification ties the maintenance contract duration to the warranty on the artificial turf (5-year minimum, not 3). The correction therefore rests on an unproven premise and lacks proper reasoning. The plea is serious. The Council orders extreme-urgency suspension and reserves costs.
Why does this matter?
For contracting authorities, this is the strongest judgment of its kind: article 86, §2 is not a tool you can adjust at will. The formula is regulatorily fixed (P = L × Y / X) with literal definitions of each factor. Deviate — by computing L as 'unit price per year' instead of 'average price per bidder' — and you create a hybrid formula whose lawfulness is not guaranteed. The second lesson matters as much: before you even apply the gap-filling formula, you must demonstrate that all bidders understood the item identically. Strong price differences between bidders for the same item is a red flag: some may have filled it in differently or absorbed the cost in another item. For bid managers this is a guide: if a winning bid suddenly becomes competitive after a 'gap correction', verify (a) whether the authority followed article 86, §2 to the letter and (b) whether the 'same content, comparable prices' premise is demonstrable.
The lesson
Is the contracting authority applying article 86, §2 of the Royal Decree on Award to fill a gap? Test two things. First: did the authority apply the formula LITERALLY, with L = arithmetic mean of the prices other bidders submitted for that item? Or has L been 'refined' by a coefficient (per year, per unit, per zone) not in the regulatory text? Second: has the authority shown that all bidders understood the item identically? Significant price differences across bidders for the same item are a strong indication the bids are not comparable — and then the only option is to reject the bid, not fill the gap.
Ask yourself
Got an award report where the authority 'filled' a gap via art. 86, §2? Compare the formula in the report word-for-word with the Royal Decree text. Any new factor, divisor, or different reading of L, X or Y? You probably have a serious plea.
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 →