‘Prices subject to the availability of paper’: excluding a tenderer on one sentence from its methodology without asking for clarification is careless — the Flemish travel-behaviour survey suspended
The Flemish Region declared Profacts’ tender for the fieldwork of the seventh Travel Behaviour Survey null because its methodology, in the middle of a paragraph on printing and the European paper shortage, stated that prices were ‘subject to the availability of paper’, and awarded the lot to Ipsos, whose missing annex on information security was allowed to be cleared up through an ‘incidental’ e-mail contact; the Council of State suspended the award because the Region had read a price reservation into the mere wording of that sentence — while the context, an inventory without any reservation and the revision clause of the specification itself pointed the other way — and had left unused the possibility of asking Profacts for clarification.
What happened?
In June 2022 the Department of Mobility and Public Works of the Flemish Region launched an open procedure for the seventh Travel Behaviour Survey in Flanders and the Brussels-Capital Region (specification AB/2022/11), in two lots: the fieldwork (lot 1) and the checking, cleaning and analysis of the data (lot 2); because the contractor for lot 2 checks the contractor for lot 1, no one could tender for both. For lot 1 the specification asked for a mixed price: a reserved sum for incentives, unit prices per estimated quantity for printing, handling, postage and the digitisation of questionnaires, and global prices for the rest, all lump-sum. The award criteria were price (40 points), quality of the methodology (40, with a sub-criterion on information-security measures requiring at least 5/10) and experience of the team (20). Annex 2 to the specification was a form listing 26 information-security measures; point A.3.4 listed the documents to be attached to the tender, including ‘the documents for the assessment on the basis of the award criteria’. The specification contained a price-revision clause tracking only wages and social charges (point B.3.1, article 38/7 of the Royal Decree on execution) and a clause on unforeseeable circumstances (point B.3.3, article 38/9). Two tenders came in: Profacts and Ipsos. Profacts’ research proposal stated, under point 2.3.3 on printing, after a table of specifications and estimated quantities: ‘We should also note that our budget takes account of paper costs as of July 2022. Owing to a European paper shortage, both by type and by weight, prices are subject to the availability of paper. This also implies that paper must be ordered in good time so that printing and mailings can proceed as planned.’ Profacts’ inventory, with unit prices for each printing item and ‘white-collar wages’ as the revision formula throughout, contained no reservation whatsoever. Ipsos’s tender lacked annex 2. According to the Region this came up ‘incidentally’ during a meeting on another ongoing Ipsos contract; on 18 August 2022 Ipsos e-mailed that all elements of annex 2 were covered in its proposal, referring per measure to the pages of its tender. The department’s General Technical Support service (ATO) nevertheless advised on 16 September 2022 that annex 2 was used directly in the assessment, that requesting it amounted to a modification and possibly a regularisation of the tender, and that Ipsos’s tender had to be declared irregular. The evaluation committee, which met on 18 August with a report dated 5 September 2022, did not follow that advice: ‘all requested information is thus present’, Ipsos scored 7/10 on information security and 91/100 overall. Profacts’ tender, by contrast, was declared substantially irregular and null: the reservation made the price comparison impossible and the tenderer’s commitment uncertain (article 76(1) of the 2017 Royal Decree on award). The Flemish Minister for Mobility and Public Works awarded lot 1 to Ipsos on 4 October 2022; Profacts learned of it on 5 October and applied for suspension under extreme urgency on 19 October. Ipsos intervened. At the hearing of 10 November 2022 first auditor-head of division Ann Eylenbosch delivered an opinion contrary to what the Council would decide. Chamber president Paul Lemmens started from the framework: a reservation on an essential condition such as price makes the tender incomparable, confers a discriminatory advantage and renders the commitment uncertain, and in an open procedure inevitably leads to nullity, without any margin of discretion. But a reservation presupposes factually and legally acceptable data making it plausible that the tenderer attaches to its tender a condition that finds no support in the specification and the regulations. The Council, which had inspected the confidential tender, pointed out that the passage appeared in a description of the approach to printing, in a paragraph on specifications and quantities, and that the ‘reservation’ was linked not to price fluctuations but to ‘the availability of paper’; the closing sentence about timely ordering concerned availability, not price. Nowhere was it explained when and how prices would then be adjusted — whereas the specification itself contained a mechanism for that, the unforeseeable-circumstances clause under article 38/9. It was therefore not implausible that Profacts implicitly referred to that mechanism, all the more so because both the Chancellery of the Prime Minister (recommendations of 7 July 2022 on price rises following the war in Ukraine) and the department itself (service order MOW/MIN/2022/02 of 19 July 2022) had, just before the submission date, acknowledged that contractors were struggling with price rises and supply problems and had called for a flexible application of the revision mechanisms. The Council did not need to determine how the sentence should be understood; it found that the Region had concluded to an actual price reservation solely on the basis of the wording, after which nullity followed automatically, and that it had not used the possibility under article 66(3) of the 2016 Act to ask Profacts for clarification. The declaration of irregularity therefore did not appear to have been made with the required care: the first branch of the first plea was serious. The second branch, on the treatment of Ipsos, was not. The Council assumed that annex 2 belonged to the tender and that Ipsos’s tender was thus incomplete, but an incomplete tender is not necessarily substantially irregular: article 66(3) allows missing information to be supplemented or clarified, subject to equal treatment and without modifying the essential elements. On the ‘incidental’ contact the Council observed that a written record in the administrative file would certainly have been advisable, so that it could be checked whether there had been impermissible favouritism towards a tenderer already performing another contract. But a comparison of Ipsos’s tender with its e-mail showed that the references corresponded to the requested elements: Ipsos had changed nothing, only pointed. That the Region did not expressly state why it departed from ATO’s advice was not a failure of formal reasoning; the report showed that it considered the tender assessable without annex 2. The Council did find it striking that the Region showed ‘some goodwill’ towards Ipsos and none towards Profacts, but a request for clarification about a missing document and the interpretation of a passage in the tender were, at this stage, not comparable situations. The second plea, against the specification itself, was examined despite the suspension already obtained because it might lead to a wider suspension, but failed: article 38/7(2) does not require a price-revision clause and lets the authority choose the parameters, so the absence of a paper index is not in itself unlawful, and the duty of care does not turn that freedom into an obligation, certainly not where the specification contained the unforeseeable-circumstances clause; the choice of unit prices per estimated quantity rather than cost-reimbursement pricing also fell within the authority’s discretion — and Profacts had left unused the possibility under article 81 to point out errors or omissions before submission. The Council suspended the decision of 4 October 2022, both the nullification of Profacts’ tender and the award of lot 1 to Ipsos.
Why does this matter?
Autumn 2022 was the season of price rises: paper, steel, energy — everything became dearer and scarcer, and governments themselves urged contracting authorities to be flexible. This judgment shows what happens when a tenderer names that reality honestly in its tender and the authority reads the word ‘reservation’ into it. The Council of State does not deny the strict rule: a genuine price reservation makes a tender in an open procedure irrevocably null, without any discretion. That is precisely why it demands that the label ‘reservation’ be applied with care. Whoever sees the word may not stop reading. The context (a paragraph on printing and quantities), the inventory (no reservation whatsoever next to the unit prices), the link to availability rather than price, the absence of any modality for a price adjustment and the existence of a revision clause in the specification itself were all elements pointing to something other than a condition attached to the tender. And where the intention is unclear, article 66(3) of the 2016 Act offers a way out the Region did not take: ask. The judgment is also instructive in its asymmetry. The same authority had taken the trouble to check with Ipsos whether the missing annex 2 was to be found elsewhere in the tender, and the Council approved: an incomplete tender is not by definition substantially irregular, and pointing to what is already there is not a modification. But the way it happened — ‘incidentally’, during a meeting on another contract, with no trace in the file — earned an explicit warning: that way nobody can check whether favouritism was at play. Finally, the judgment confirms the limits of what a tenderer can raise against the specification after the fact. A price-revision clause that tracks only wages is not unlawful because the price of paper explodes; the authority chooses the parameters, and whoever considers the pricing method unsound must say so before submission. The lesson about the disrupted market therefore lies not in the specification but in the unforeseeable-circumstances clause — and in the simple rule that remarks about price risks are best left out of a tender altogether.
The lesson
Never write in your tender that your prices are ‘subject to’ anything, even if you only mean to describe a market situation everyone knows: in an open procedure one sentence can suffice to have your tender declared null, and you only won here because the authority concluded too quickly. If you want to flag a price risk, refer expressly to the revision clause or the unforeseeable-circumstances clause of the specification, and keep your inventory and price schedule free of any comment. If you find the price-revision formula or the pricing method inadequate, say so before submission through the question round or article 81 of the Royal Decree on award; after the award that criticism is no longer serious. Finally, check your checklist: a missing annex can sometimes be cleared up, but you do not want to depend on the authority’s goodwill. If you are a contracting authority, read an alleged reservation in context — where does it appear, what is it linked to, is there anything next to the prices themselves, does your specification already provide a mechanism — and when in doubt ask for clarification under article 66(3) before declaring nullity; the nullity is automatic, the qualification that precedes it is not. Treat both tenderers with the same goodwill, and record every contact with a tenderer in writing in the administrative file, especially if that tenderer is already performing another contract for you. If you depart from the advice of your own technical service, make sure your report shows why.
Ask yourself
Is there anywhere in your tender — including outside the price schedule, in the methodology or an explanatory note — a sentence that could be read as a condition attached to your price? Do you refer to the clauses of the specification for price risks instead of using your own wording? Did you contest the price-revision formula and the pricing method before submission if they do not fit your cost structure? As a contracting authority: have you read the passage you qualify as a reservation in its context and set it against the inventory and your own revision clauses? Did you consider asking for clarification before concluding to nullity? Can every contact with a tenderer about its tender be found in writing in the file, and can you show that you extended the same goodwill to both tenderers?
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 →