'Prices were adjusted where necessary': three words in a tender evaluation report enough to suspend De Lijn's printing framework
The Council of State suspends LijnCom's award of the framework contract for printing and adhesive advertising on De Lijn buses to 3Motion, because after the price justification round the contracting authority 'adjusted' some of the winner's unit prices — whereas article 36, § 3 of the 2017 placement royal decree offers only three options: reject the tender, reject the tender, or give reasons why the total amount is not abnormal.
What happened?
LijnCom — the public-law company that runs commercial advertising on De Lijn buses and trams — tendered a framework contract for printing advertising stickers, logistics to all depots across Flanders, and the physical application and removal of stickers. Procedure: competitive procedure with negotiation under article 38, § 1, 1° c) of the 2016 procurement act, awarded on price (55 points) + sustainability (15), quality (15) and service (15). Three companies were selected: PPP-APS Group (Edegem), 3Motion (Sint-Niklaas) and a third. After oral presentations on 10 November 2022, LijnCom on 15 November 2022 sent PPP-APS a letter with clarification questions AND a price justification request (art. 36 of the 2017 placement decree); 3Motion received only a price justification request, no clarification. What followed sits in the evaluation report with a treacherous sentence: 'in the award, [their] answer was taken into account, prices were adjusted where necessary'. From 3Motion's confidential price justification — which the Council was allowed to inspect — it appears that the winner confirmed some unit prices and modified others (upward). From the confidential price matrix (annex J) the Council also saw that LijnCom had taken those modified prices straight into the final evaluation. Final ranking: 3Motion 100 points, PPP-APS 70.75, number three 66.73. On 6 December 2022 the LijnCom board awarded to 3Motion. PPP-APS filed an extreme-urgency action. Presiding judge Paul Lemmens reached three crucial findings. One: there were no 'negotiations' within the meaning of article 38, § 6 and § 8, merely clarification and price justification; so no breach there. Two, and this is the pivot: the report does not show that it concerned 'calculation errors or purely material errors' (art. 34, § 2, which may indeed be corrected). On the contrary, the adjustments simply reflect the price changes 3Motion itself proposed in its justification. Three: article 36, § 3 of the 2017 placement decree is exhaustive — after a price enquiry the authority may only (1°) find that a non-negligible item is abnormal and reject the tender, (2°) find that the total is abnormal and reject, or (3°) give reasons why the total is not abnormal. There is no 'adjust prices per justification' option. Bonus finding: even if adjustment were allowed, it would not have been diligent here, as LijnCom did not explain per item why the adjusted prices removed the apparent abnormality — a 'stock phrase' does not suffice. That the adjustments were all upward (against 3Motion's interest) does not cure the unlawfulness either. The ground is serious, the suspension is granted.
Why does this matter?
This ruling puts pressure on a very common practice. In many files the authority, after a price enquiry, circulates a revised price matrix and incorporates the new figures in the award report without further motivation. As competing bidder you rarely see this in detail — the price justification is confidential. But the Council takes the trouble of inspecting the confidential file, and that is exactly how this breach came to light. For bidders the ruling is a blueprint: a sentence like 'prices were adjusted where necessary' in the evaluation report is on its own a potential ground for action. For contracting authorities — and this touches every service working with unit prices (construction, green maintenance, logistics, transport) — the message is blunt: article 36, § 3 has no fourth option. What a bidder proposes in its price justification is not a new offer but a justification of the prices submitted. Anyone who then 'adjusts upward' gives the bidder a second chance that the others do not get — a structural equality problem.
The lesson
When in practice you find that the winning unit prices in the award report do not match the original tender, check three things. One: does the report somewhere state that this concerns 'arithmetic corrections' or 'purely material errors' (art. 34, § 2)? That is the only basis on which LijnCom could have saved itself — but then it must indeed be calculation errors, not substantive price changes. Two: is the adjustment the result of the price justification itself (i.e. proposed by the bidder)? Then you are almost certainly in article 36, § 3 territory, and 'adjusting' is not a permissible outcome. Three: does the authority explain per enquired item why the apparent abnormality has been removed? A single sentence 'price accepted' or 'adjusted' without substantiation qualifies as a stock phrase and is not diligent. As an authority: explicitly build a three-option decision into your evaluation report, per enquired unit price.
Ask yourself
When your winning bidder has raised or modified certain unit prices in its price justification: does the evaluation report for each modified item (a) qualify why this is not a material/calculation error (hence no art. 34, § 2 hypothesis), (b) state which of the three decisions under art. 36, § 3 is taken, and (c) explain on what elements of the justification the apparent abnormality has been removed? If one of these three is missing: you are exposed.
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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 →