Vanderstraeten fills in the exterior-joinery pricing sheet incorrectly and loses the construction of 206 social housing units in Anderlecht: not a ‘material error’, but a new bid
The Brussels Regional Housing Company rejected the bid of Vanderstraeten NV for the construction of 206 social housing units because, in the pricing sheet for the exterior joinery, it had priced only the window frames and not the glazing; when Vanderstraeten later tried to remedy that gap as a ‘purely material error’ — worth 1,505,985.95 euros extra — the Council of State, ruling under extreme urgency, held that this was not a correctable slip but a prohibited new bid, and dismissed the suspension action.
What happened?
The Brussels Regional Housing Company launched a public works contract for the construction of 206 social housing units, spread over two buildings on the Henri Simonetlaan and the Narcissenlaan in Anderlecht (the ‘Erasmus’ project). It chose an open procedure with price as the sole award criterion and published the contract nationally and at European level. At the opening on 14 September 2022 there were four bids on the table, including those of Vanderstraeten NV and of the temporary partnership Artes TWT – Louis De Waele Construction. The specifications asked bidders to state the price for the exterior joinery (item 41-10-11) in a separate Excel ‘pricing sheet’. In its first tab, a unit price per square metre had to be entered for each window type covering the entire exterior joinery — frame plus glazing or infill panel together — after which the file automatically calculated the subtotals and the total; the second tab contained only dimensions and left no room for prices. Vanderstraeten, however, filled in only that second tab, with two self-added columns ‘unit price per element’ and ‘total price’, thus stating, on its own account, only the price of the frames and not that of the glazing. When the contracting authority requested the pricing sheets in xls format on 15 September, Vanderstraeten sent the same, incompletely filled-in version on 19 September. After a request for clarification of 17 October, the company came back on 28 October 2022 with a new pricing sheet and a note invoking a ‘purely material error’: in transcribing the figures, only one tab had allegedly been carried over by mistake, so that the price of the glazing and the infill panels was missing. With that correction, item 41-10-11 jumped from 4,021,454.77 to 5,516,387.16 euros and item 41-20-15 from 47,871.32 to 58,924.88 euros — an addition of 1,505,985.95 euros in total. Vanderstraeten relied on article 34 of the Royal Decree on Placement of 8 April 2017, which obliges the authority to correct arithmetical and purely material errors. In the award report of 15 December 2022 the Housing Company rejected this. In its view, Vanderstraeten had altered the pricing sheets and left one page blank, so that its unit prices were not comparable with those of the other bidders, who had entered a single price for frame and infill together in the first tab. This was not a material error: the total of the pricing sheets matched exactly that of the summary bill of quantities, so no price was ‘missing’, and a bid may not be altered after submission. The bid was therefore substantially irregular and was declared void under article 76(3) of the Royal Decree. The same day, the authority awarded the contract to the lowest regular bidder, the Artes/Louis De Waele partnership. Vanderstraeten sought the suspension of that decision under extreme urgency. The Council of State did not follow the bidder. A ‘purely material error’ within the meaning of article 34 is a slip or mistake in the material operations of drawing up a bid — entering and transcribing figures — about which there is scarcely any dispute, and that notion must be interpreted strictly because a correction departs from the principle that bids are immutable after submission. Here matters were different: Vanderstraeten had not understood the manner of pricing. The prices belonged, per square metre, in the first tab — frame and infill together — and not, as the company thought, in the second tab to be added up afterwards; nothing was to be filled in in that second tab. The pricing sheet it submitted on 28 October, with the first tab filled in for the first time and only with the glazing price, amounted, according to the Council, to a new bid. That no price was missing was moreover apparent from the equality between the total of the pricing sheet and that of the summary bill of quantities. The subcontractor’s document, produced only at the hearing, was set aside as late. The sole plea was not serious, so the Council dismissed the suspension action and ordered Vanderstraeten to pay the costs: a roll fee of 200 euros, a contribution of 24 euros and a procedural indemnity of 770 euros to the Housing Company. The intervening companies together bore a roll fee of 300 euros, each for half.
Why does this matter?
This judgment draws a sharp line between two things bidders easily confuse: the correctable material error and the prohibited alteration of the bid. Article 34 of the Royal Decree looks generous — the authority ‘corrects’ arithmetical and purely material errors — but the Council of State reads it narrowly, precisely because any correction collides with the principle that a bid is immutable after the opening. A slip that everyone immediately recognises as a mistake may be put right; a price that, through a misread specification, was not stated at all and is only added weeks later, after questions from the authority, is not. Here the distinction is anything but academic: it concerned one and a half million euros that the bidder still wanted to add to its price. The message is that the instructions for filling in a pricing sheet are not a formality but the very heart of fair, comparable competition — whoever ignores them risks not a request for correction but the annulment of its bid. For contracting authorities, the judgment confirms that they may and must set aside a bid that makes comparison with the other bids impossible, and that the equality between the pricing sheet and the summary bill of quantities is a usable, objective argument to show that no price is ‘missing’ and there is therefore nothing to correct.
The lesson
Read the instructions for filling in every pricing sheet literally and state your prices in the place and unit required — here: a single unit price per square metre for frame and glazing together, in the first tab, and not split out in a tab not intended for that. If, after the opening, you notice that you have not priced an item or priced it wrongly, do not count on article 34: it saves only a genuine slip, not a price you never stated and add only after questions from the authority, because that counts as a new bid. As an authority, you may set aside a bid that alters the pricing sheets or leaves them incomplete as substantially irregular as soon as that prevents the assessment or the comparison with the other bids; motivate this concretely and, where appropriate, use the finding that the total of the pricing sheet equals that of the summary bill of quantities to show that no price is missing.
Ask yourself
Have you filled in every pricing sheet in exactly the place, unit and manner prescribed by the specifications, and checked whether the automatically calculated totals match your intended price? Do you realise that an item you did not price at all is not a ‘purely material error’ that can be added afterwards, but a gap that makes your bid irregular? Do you know that a price list you complete in full only after a question from the authority can be seen as a new — and therefore inadmissible — bid? And as an authority: can you concretely motivate why an altered or incomplete pricing sheet makes comparison with the other bids impossible, and have you checked whether the total of the pricing sheet matches that of the summary bill of quantities?
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 →