Aramark stretches the staff item from 42 to 48 months in its BAFO — and the Uccle social welfare centre loses the award of its care-home kitchens
The public social welfare centre (CPAS) of Uccle awarded the management of its two care-home kitchens to Aramark even though, in its final offer, Aramark had raised the ‘estimated quantity’ of the staff item from 42 to 48 months and had deleted the lump-sum item for the staff to be taken over, which the CPAS had imposed as an ‘invariable datum’; the Council of State suspended the award under extreme urgency because the specifications expressly prohibited such corrections, articles 79 and 86 of the Royal Decree on award procedures do not automatically apply in a negotiated procedure, and the deviation broke equality with Sodexo, which had followed the instructions.
What happened?
The CPAS of Uccle wanted to entrust the kitchens of its two care homes, Home Brugmann and Domaine du Neckersgat, to a single external chef-manager for four years, as part of a merger in which Home Brugmann would eventually close. Specifications 20/2021 were approved on 20 October 2021 and published as an open procedure with European publication. Sodexo, the incumbent, and Aramark submitted offers. On 30 March 2022 the CPAS decided not to award because both offers were irregular or unacceptable, and to continue the procedure as a competitive procedure with negotiation without a new notice (article 38, § 1, 2° of the Act of 17 June 2016). A key element was collective agreement 32bis: the incumbent's staff at Domaine du Neckersgat had to be taken over by a new provider. Sodexo, as incumbent, did not include that staff in item 3.3 (staff remuneration) because it could redeploy its own people to other sites; Aramark priced the four (in practice three) employees concerned full-time. To neutralise Sodexo's competitive advantage, the CPAS intervened after the negotiation session of 22 June 2022: with the invitation to submit a best and final offer (BAFO, by 20 July 2022) it published an addendum with an amended inventory. A new item 3.4 was created with a lump-sum price of 53,107.77 euros for the external staff to be taken over for six months, expressly an ‘invariable datum’; the estimated quantity of item 3.3 was consequently reduced from 48 to 42 months; and an optional item 3.3.1 could be created for additional staff ‘for a maximum duration of 48 months’. Aramark did something else in its BAFO: it raised the quantity of item 3.3 from 42 to 48 months, reduced item 3.3.1 from 48 to 12 months and entered no lump-sum price for item 3.4 — it simply included part of the remuneration of the staff to be taken over under item 3.3. The CPAS's analysis report accepted these ‘corrections of estimated quantities’ by applying articles 79, § 2, 2° and 86, § 4 of the Royal Decree, applied the increase of item 3.3 to both bidders and awarded the contract to Aramark for 2,675,535.49 euros excluding VAT. Sodexo filed an application under extreme urgency on 26 October 2022. The Council of State first declared the application inadmissible insofar as it was directed against the implicit decision not to award to Sodexo: Sodexo did not show that, after a suspension, the CPAS would have no choice but to award to it. On the merits, the first plea was serious. The Council stated as a principle that articles 79 and 86 of the Royal Decree — which govern the correction of estimated quantities and price omissions — are written for open and restricted procedures and apply to negotiated procedures only if the procurement documents expressly so provide. In a negotiated procedure the contracting authority sets its own rules, but must then abide by them. The specifications did not refer to those articles; on the contrary, point I.6 expressly stated that bidders were not allowed to correct errors in the estimate of the estimated quantities in their offers, and point I.7 required them to report errors in the procurement documents no later than ten days before submission. By accepting Aramark's ‘rectifications’, the CPAS breached its own specifications and the principle patere legem quam ipse fecisti. The argument that the addendum had amended those prohibitions was rejected: the addendum and the BAFO invitation merely invited bidders to ‘optimise’ kitchen management while respecting a new, invariable item 3.4, and the reference to ‘a maximum of 48 months’ applied only to the optional item 3.3.1, not to item 3.3, whose quantity was ‘henceforth (invariably) fixed at 42 months’. Aramark's argument that a competitive procedure with negotiation inherently allows such changes did not hold either: the procurement documents prohibited them, and after the negotiations the CPAS had very clearly indicated what the optimisation proposals could cover. Aramark's final offer was therefore prima facie irregular, and the CPAS should have found so instead of applying articles 79 and 86. Nothing indicated that the irregularity was ‘obviously’ non-substantial: the unauthorised change affected total prices and hence possibly the ranking, and above all Aramark had ignored the corrective measures the CPAS had just introduced to restore equality, whereas Sodexo had complied in its offer with the lump-sum item 3.4 and the 42 months of item 3.3. That in turn created an inequality between bidders. The other pleas did not need to be examined; neither the CPAS nor Aramark identified disadvantages of a suspension outweighing its advantages. The Council ordered the suspension of the award decision of 28 September 2022 with immediate effect, maintained the confidentiality of the offers and the comparison table, and reserved the costs, including the procedural indemnity.
Why does this matter?
The practical value of this judgment lies in a principle many contracting authorities and bidders overlook: the rules of the Royal Decree on correcting estimated quantities and price omissions (articles 79 and 86) do not automatically apply in a negotiated procedure. There, the contracting authority itself decides in its procurement documents whether and how quantities may be adjusted — and what it decides then binds it. The CPAS of Uccle had even expressly prohibited correcting such errors in the offer, yet in its analysis report it reached for articles 79 and 86 to regularise Aramark's deviating final offer. That is precisely the error the Council sanctions. The judgment is also instructive about the dynamics of a BAFO round. To neutralise the incumbent's advantage under collective agreement 32bis, the CPAS had introduced a lump-sum item and labelled it ‘invariable’. Aramark stepped over it by accounting for the staff to be taken over elsewhere in the inventory, resulting in a lower total price. To the CPAS this may have looked like creative optimisation, exactly what it had asked for. To the Council it was an offer that ignored the rules of the game and thereby created a new inequality vis-à-vis the bidder who had followed the instructions. Negotiation allows much, but not everything: once the contracting authority has drawn the lines for the BAFO after the negotiations, those lines bind the authority too. Finally, the judgment confirms a settled procedural line: an unsuccessful bidder who also challenges the implicit refusal to award to it must show that the contract necessarily had to go to it — otherwise that part of its action is inadmissible, however serious its pleas against the award to the competitor.
The lesson
For contracting authorities using negotiation: write out yourself how you deal with changes in quantities and price omissions, because articles 79 and 86 of the Royal Decree are not your safety net unless your specifications expressly refer to them. If you have included a prohibition, apply it — including to a final offer you find financially attractive. If, after the negotiations, you draw the lines for the BAFO (here: an invariable lump-sum item and a fixed quantity of 42 months), you must assess an offer that goes beyond them as irregular, qualify the irregularity as substantial or not, and state that qualification in the award decision. For bidders: a BAFO invitation to ‘optimise’ is no licence to rewrite the inventory. Read which items the authority has marked as fixed and stay within them; whoever restructures the inventory to come out cheaper risks the offer. Conversely: if, as a competitor, you did follow the instructions, the winner's deviation is a strong plea — especially if the authority regularised it on the wrong legal basis. Challenge the award in that case, but be aware that the claim against the implicit refusal to award to you is admissible only if you show the contract necessarily had to be yours.
Ask yourself
Do your specifications for a negotiated procedure expressly state whether articles 79 and 86 of the Royal Decree apply, and does your analysis report act accordingly? Did you make clear in the BAFO invitation which items and quantities are fixed, and do you check that every final offer stays within them? If you nevertheless want to accept a deviating final offer: have you identified, qualified and justified the irregularity, or have you tacitly regularised it? And as a bidder: do you know which elements of the inventory became ‘invariable’ after the negotiations, and can you show that you complied while the winner did not?
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 →