'Site preparation costs spread across unit prices'? Not when the specifications say 'TP' — VMG-De Cock pays €53,376 and slips to fourth place
VMG-De Cock left item 02.00 'site preparation — general' blank, arguing the cost was already spread over all unit prices, but the specifications expressly said 'TP' (total price); the gap formula pushed the bidder from third to fourth and the Council of State refused to suspend.
What happened?
In April 2019 the municipality of Wichelen launched an open procedure for a new sports building 'Sportpark Bellekouter' in Schellebelle — lot 1 'architecture and stability, pilot contractor', estimated at €1,486,551.97 including VAT. Five bidders submitted offers, including VMG-De Cock. After a first award decision on 9 August 2019 in favour of Roels, VMG-De Cock raised objections. The municipality withdrew its award on 6 September 2019 and on 20 September 2019 asked all five bidders to justify certain unit prices. On reassessment it appeared that VMG-De Cock had left item 02.00 'site preparation — general' blank on the summary bill of quantities. The municipality applied the gap formula in article 86, § 2, first paragraph of the Royal Decree of 18 April 2017 on award of public contracts in classical sectors, adding €53,376.41 to the offer. The final ranking (incl. VAT): Roels €2,034,741.89 — Dero Construct €2,089,548.78 — Bouw en Renovatie €2,126,586.17 — VMG-De Cock €2,169,223.87 — Stadsbader €2,200,074.04. On 29 November 2019 Wichelen awarded the contract to Roels. Before the Council of State, VMG-De Cock argued the gap formula was wrongly applied. Its reasoning: no quantity was stated for chapter 02 'site preparation', the VMSW model specification typically says 'PM' on sub-items, so the cost should be spread proportionally across all unit prices. In the price justification for item 23.71 it had explicitly counted a 2.7 % 'site preparation share', amounting to €46,575. The extra €53,376.41 was therefore unnecessary in its view. The Council of State did not follow that. The specific specifications (reference 18.023) expressly stated 'TP' — abbreviation for total price — at item 02.00. The model bill of quantities said the same. By contrast, sub-items under 'site preparation' carried 'PM' (pro memoria) — precisely showing the difference. Moreover, the four other bidders had quoted a separate price for item 02.00. The argument that the specifications fell back on the VMSW Building-Technical Specifications for Housing made no impression: clause 01.01 of the special specifications stated explicitly that this was not a reference specification — the present specification was 'the only specification text for this project'. The Council also held that a contracting authority faced with a blank item is not required to ask for clarification before applying the gap formula: article 86, § 2, offers two options (reject the offer as irregular or fill the gap via the formula), with no duty to consult. The first plea was held not serious. On the second and third pleas — criticism of the price scrutiny of Roels and Dero — VMG-De Cock faced a standing objection: as fourth-ranked with no path to first, it lacked sufficient interest. The Council agreed. The UDN suspension request was dismissed; costs reserved.
Why does this matter?
Bidders frequently lean on VMSW conventions or industry practice to fill specification items 'creatively' — for example by spreading site preparation across unit prices instead of quoting them separately. This judgment makes it bluntly clear that such conventions yield to the wording of the specific specifications. If 'TP' is written, a total price must be quoted — regardless of model specifications or what was customary in earlier projects. And if the contracting authority then applies the gap formula, no prior clarification is required: the Royal Decree gives two options, not a duty to consult. For bidders: read the specifications that govern your tender, not the model you usually rely on.
The lesson
Before leaving an item blank on the summary bill of quantities because 'the cost is in the unit prices', look literally at what is written next to that item: 'TP' means total price and demands a separate quote; 'PM' (pro memoria) means you indeed need not quote a price. Never trust a model specification or convention blindly — the special specification text can expressly switch them off. And if you do leave gaps: know that the contracting authority can apply the gap formula without first asking — a 'correction' that can wreck your ranking.
Ask yourself
On the summary bill of quantities you see an item with an abbreviation next to it (TP, PM, EH, FH, SOG, …). Have you quoted a price for every item that is not 'PM', even where no quantity is given? A total price doesn't require a quantity — and a blank 'TP' item lets the authority apply the gap formula.
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 →