Confirming is not the same as recalculating: how Bidfood lost its food deal with the best of intentions
The Council of State dismisses Bidfood Flanders's appeal against the City of Ghent: a clarification request from the contracting authority ('can you confirm your prices are per kg?') does not give the bidder the right to submit a new Excel with revised unit prices for 23 line items.
What happened?
The City of Ghent ran an open procedure for a framework agreement to deliver dry food, frozen products and hospitality specialities — specification ECO/2019/008-1D4631, divided into two lots. On 13 May 2019 the bids for lot 1 (dry food and frozen) were opened. Four bidders submitted, including Bidfood Flanders; one bidder provided no documents and was excluded. On review, the city noticed striking price differences between the three remaining bids. On 7 June 2019 the city emailed all bidders with two questions: (1) confirm whether the offered prices are indeed per kilogram, litre or unit — for Bidfood, a list of 36 specific items was attached where the prices 'stood out'; (2) for item 117 'gel texture', Bidfood's product description read 'gelling sugar' — could the bidder confirm that the price was for the requested gel texture? On 12 June 2019, Bidfood replied. For item 117, instead of confirming, it corrected: new product (Knorr gel texture), new article number, new price. And for 23 other items, Bidfood sent a brand new Excel with revised unit prices — column Q with 'adjustment per kilo/litre'. The other two bidders simply confirmed by email that their prices were already per kg/litre. On 14 June 2019 the contracting authority drafted its award report. Bidfood's bid was declared irregular: in an open procedure, it is not allowed to amend a bid after opening; changing unit prices and an article is a substantial irregularity. The contract went to Java BVBA. On 18 July, the College of Mayor and Aldermen approved the award. On 9 August 2019 Bidfood lodged a request for suspension under extreme urgency before the Council of State. Single plea: Bidfood did nothing more than respond to the city's request — a correction of an error, with 'almost no impact on the total amount', so not a substantial irregularity. Bidfood argued that articles 33-36 of the Royal Decree on Award require the contracting authority to correct material errors. The Council swept this aside. First, a procedural blow: Bidfood's request only attacked the finding on item 117, but a load-bearing motive of the award decision was also the change of prices for 23 other items — and that motive was not contested. Substantively: article 54, §2, first paragraph of the Royal Decree states that a bidder may submit only one bid per contract. The changes Bidfood made after the email of 7 June for 23 items were rightly seen by the city as a second bid. A clarification request may not be used to amend the bid — what Bidfood did was no 'precision or clarification'. None of the exceptions in article 54 applied. Article 76, §1, fourth paragraph qualifies non-compliance with article 54, §2 as substantially irregular; article 76, §3 mandates nullity without discretion. The 'small impact' argument missed the point: no leeway. The Council found Bidfood lacked the required interest and dismissed the action.
Why does this matter?
Contracting authorities regularly send clarification questions after opening: 'can you confirm that...', 'is it correct that...'. Many bidders read this as an invitation to sharpen their bid. That is a dangerous reflex. A clarification request allows: yes/no confirmation, pointing to a typo, removing ambiguity. What it does not allow: new unit prices, different articles, an amended schedule of items. For bid managers this judgment is a warning to keep the pen down whenever an answer to a clarification request would change a number. For contracting authorities it confirms that a strict line — 'second Excel = second bid = out' — is fully backed by the Council.
The lesson
If a contracting authority emails you 'can you confirm your prices are per kg', answer 'yes, all prices are per kg' or 'no, item X was per unit; the price per kg is Y'. Do not send a new Excel with revised prices for other items — even if you think it is 'correcting an error'. In doubt? Treat any number in your reply that differs from your original bid as a red flag.
Ask yourself
You receive a clarification request after opening. Place your reply next to your original bid. Are the unit prices, article numbers and products identical? If yes: send. If no: remove the changes or call your lawyer — even with the best intentions, you may be legally out.
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 →