The 15% threshold of article 37 applies per lot — not per project. And theatre seats are not 'extra work' to a structural-build contract
The Council of State suspends AGB Deinze's decision to award sub-lot 8 (theatre seats, €219,359.80) — after a failed procurement procedure — 'as extra work' to the structural-build main contractor Strabag, because the 15% margin of article 37 of the Royal Decree on the General Rules of Execution 2013 must be calculated on the originally awarded lot, and supplying theatre seats is moreover a substantial extension of a contract for 'architecture and stability'.
What happened?
On 12 December 2016 the Deinze municipal council launches an open procedure for the construction of the cultural centre 'Leietheater', total estimated at €9,141,183.80 excl. VAT. The project is split into five lots. Lot 1 (architecture and stability, estimated €6,037,156.32) is awarded on 30 May 2017 to NV Strabag Belgium — which is also designated 'lead contractor' for site organisation. Lot 5 (theatre techniques, estimated €1,586,250) is split 'for technical reasons' into sub-lots. For sub-lot 8 — supply, installation and commissioning of theatre seats, estimated €114,025 — AGB Deinze chooses a negotiated procedure without prior publication. Three undertakings are invited, including MPRA and NV Jezet Seating. Problem: all three offers exceed the €144,000 threshold above which the procedure without publication may not be used. AGB Deinze halts the procedure on 2 April 2019. Then comes the creative solution. AGB Deinze first decides orally to award sub-lot 8 'as extra work' directly to Strabag (the main contractor of lot 1). MPRA challenges that decision. On 20 August 2019 AGB Deinze withdraws the oral decision and adopts the same day a written decision with identical content: sub-lot 8 awarded to Strabag for €219,359.80 excl. VAT — 'as extra work' under article 37 of the Royal Decree of 14 January 2013, which permits unilateral modifications up to 15% of the original contract amount. AGB Deinze's calculation: €219,359.80 is 3.64% of the lot 1 contract amount (€6,037,156.32), well below 15%. Object 'unchanged' since theatre seats are part of erecting the cultural centre. Lead contractor may organise the site. Done. MPRA challenges this decision in extreme urgency too. AGB Deinze's first admissibility plea: the seats have already been manufactured, delivered and put into use, hence no interest. The Council dismisses this — an applicant retains qualified moral interest in annulment even after contract conclusion, under article 14 of the law of 17 June 2013. On the merits: the Council distinguishes sharply between the construction project as a whole and the self-chosen lot division. Article 58 of the law of 17 June 2016 itself provides that a contracting authority that does not award a lot must in principle use a new procurement procedure to have that lot performed. Article 37 of the Royal Decree of 14 January 2013 — concerning 'unforeseen technical impediments' — must be strictly construed because it derogates from the competition principle. Its rationale is not to allow pre-conceived, separately-described lots to nonetheless be awarded directly to the contractor of another lot. Further blow: the 15% test applies to the awarded lot, not to the whole project. Here the 'modification' (theatre seats €219,359.80) is in reality merely the addition of a new, already-known sub-lot from a different main lot. And the object does not remain unchanged: structural building plus site organisation versus the manufacture and installation of theatre seats — two completely different fields. Strabag is a building contractor, not a furniture manufacturer; in reality Jezet Seating would supply the seats. The single ground is serious in both branches.
Why does this matter?
When a negotiated procedure without publication fails because all offers exceed the legal threshold, the temptation is great to find a 'pragmatic' way out via the main contractor of another lot. This judgment closes that exit. The message is firm: article 37 of the Royal Decree on Execution 2013 is not a wildcard with which, after a failed award procedure for lot X, you can place lot X with the contractor of lot Y. That amounts to circumventing the competition obligation. For the bidder on the other side — whose offer was deemed 'too expensive' and who sees their contract suddenly land 'as extra work' with someone else — the judgment offers two concrete action points. One: you retain interest to challenge even after contract performance, because annulment keeps a damages claim possible. Two: build your application around the cumulative conditions of article 37 — object unchanged, 15% of the original contract amount, appropriate compensation — and demonstrate that the contracting authority applies the 15% test wrongly (on the whole project instead of on the lot) or that the 'extra work' does not substantively connect to what was originally awarded. For contracting authorities facing a failed negotiated procedure without publication: the right path is article 58 § 1, third paragraph — which expressly permits including a non-awarded lot in a new contract, possibly with a different procedure. Not article 37.
The lesson
If you ranked second in a failed negotiated procedure and you see that contract suddenly appear 'as extra work' with the main contractor of another lot: don't count at project level, count at lot level. Article 37's 15% test applies to the originally awarded lot, not the whole construction project. And test the object: a structural-works contract is not a supply contract for theatre seats, even if those seats are physically inside the same building. That is not unforeseen technical impediment but a disguised direct award.
Ask yourself
Is 'extra work' based on article 37? Then ask three questions: (1) Is the 15% margin calculated on the main lot or on the whole project? (2) Does the nature of the extra work substantively connect to the original lot, or is it a different field? (3) Was the 'extra work' already described as a separate (sub-)lot before the award of the main lot? Three yeses in the order 'project — different field — pre-known' = suspendable.
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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 →