Filling in 'included' for 11 lines of your bill of quantities can be lawful — if you can justify each clustering separately
The Council of State rejects the extreme-urgency suspension against the award of a kindergarten construction contract to VMG-De Cock because the contracting authority correctly accepted the eleven 'included' lines in the winner's bill of quantities after a substantiated justification was given per line and the tender documents did not require a separate price for any of those lines.
What happened?
The municipality of Zele issued an open works tender for the construction of a new kindergarten — structural works, finishing, technical installations and surroundings — with price as the sole award criterion. Five bidders responded. VMG-De Cock topped the ranking at 3,652,441.63 €, narrowly ahead of Dero Construct at 3,671,047.54 € — a gap of just over 18,000 €. During the arithmetic check the municipality noticed that VMG-De Cock had filled in 'included' rather than a euro amount for eleven lines of the bill of quantities — including rust-protection painting of steel pipes for sanitary, fire-water and heating installations, cleaning works, condition surveys, commissioning and testing of sun blinds, and underground pipe markers. The municipality asked VMG-De Cock to break down the prices in line with the bill. VMG replied with a detailed letter on 29 September 2022, identifying for each of the eleven lines in which other line the price was embedded (e.g. painting of steel pipes is included in the supply of those pipes; cleaning works are included in a pro-memoria line of general cleaning costs; sub-lines of condition surveys are included in the general condition-survey line). According to VMG there was no gap or material error. The municipality accepted the explanation, motivating that 'these are lines with limited relative value compared to the total bid' and that 'it is undisputed that the bidder has provided for these lines and will execute them'. Dero Construct went to the Council of State arguing that the requirement to fill in the bill 'completely and accurately' excluded any clustering, that the regularity examination was sloppy, and that two further lines ('sewer pipes – study' and 'sewer pipes – drainage scheme') had no entry at all. The Council formulated a three-pronged test for lawful clustering: the tender documents must not require a separate price for the line in question, the bidder must justify the price linkage concretely and substantively, and the cost must in fact be covered somewhere in the bill. The auditor numerically verified the eleven clusterings, requested confidential subcontractor offers (sun blind installer, condition surveyor) and concluded that all clusterings were prima facie defensible. For the two empty sewer lines the Council held that this was a clerical error — VMG had also meant 'included' there — and that the gap-filling formula of article 86, § 2 KB Plaatsing did not apply. The suspension is rejected.
Why does this matter?
For bidders on works contracts with detailed bills of quantities this ruling cuts both ways. It confirms that 'included' does not automatically lead to disqualification — but it also warns that you must justify every clustering with a logical link and, if pressed, with subcontractor offers or detailed calculations that the auditor will actually request. For contracting authorities: accepting clusterings is permissible, provided the tender documents do not exclude it, the explanation is analysed line by line rather than globally, and the regularity decision is substantive — not merely 'low value'. The motivation Zele gave was minimal and only survived because the auditor numerically filled the gaps. In an annulment proceeding or with larger clustered values the same motivation would be more vulnerable.
The lesson
If as a bidder you choose to enter 'included' for certain lines of the bill of quantities: write out per line — in your offer itself, or at the latest in your reply to a clarification request — why the price of that line is embedded in another, and make sure you can support this with invoices, subcontractor offers or detailed calculations. If as a contracting authority you receive such an offer: request the explanation, analyse per line (not globally as 'limited value'), check whether the tender documents require a separate price, and motivate in the regularity report why each clustering is accepted. An empty cell with no 'included' marker is more dangerous than an 'included' with substantiation.
Ask yourself
If the winning bid contains more than five 'included' entries, or if the combined value of the clustered lines exceeds 1% of the total bid: does your regularity report give a substantiated explanation per line — not just 'limited value'? Have you checked the tender documents for clauses that mandate a separate price per line?
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 →