A third cheaper than you is no proof of dumping — if you don't read what the tender precisely changes between BAFO rounds
The Belgian Council of State rejects Postalia's suspension claim against a postal services award to Mestrabel: the 33% price gap is largely explained because between BAFO rounds the tender clarified 'item 40 Genk' as 'mainly magazines' — which Mestrabel and Bpost picked up, but Postalia did not.
What happened?
In 2022 the city of Hasselt launched, as a purchasing centre, a four-year framework agreement for outgoing postal services (collection, handling, franking, transport, delivery) for itself, OCMW Hasselt, the autonomous municipal company, the Crematorium, and the municipalities of Halen, Zonhoven, Diepenbeek, Alken, Herk-de-Stad and the Genk group. Simplified negotiated procedure with publication. The inventory had eight tabs — one per participating authority — with indicative and maximum quantities. Critical detail: item 40 ('Occasional shipments not falling under letter mail — books, catalogues and magazines are not classified as letter mail'). For the Genk group the inventory mentioned 330,000 units; for other authorities 1 to 2,500 units. That single item represented 36% of total contract value. Three bidders: Bpost, Mestrabel, Postalia. Initial offers: Bpost €4,608,432.57; Mestrabel €3,189,438.61; Postalia €4,149,293.18. After negotiations the tender was adjusted for BAFO: item 40 Genk was clarified as 'mainly' for 'magazine shipments', and 'sporadically' for parcels. Mestrabel and Bpost picked up that change and adjusted their unit prices: a lower price for item 40 Genk than for the same item at other authorities, because magazine rates (no VAT) are lower than parcel rates. Postalia kept the same price across all sub-inventories, and interpreted item 40 despite the clarification as 'parcels'. BAFO prices after arithmetic check (excl. VAT): Bpost €3,980,886.42; Mestrabel €2,990,761.05; Postalia €4,121,587.74. Mestrabel won. Postalia filed extreme urgency proceedings. Four arguments: (1) the estimate of €3.338M was too low; (2) Bpost as universal provider must apply legal tariffs and so cannot be cheaper than Postalia (which gets discounts); (3) Mestrabel's price is below a calculated 'naked purchase cost' of €3.76M — dumping; (4) Mestrabel's action plan with trackers, Maxi Response and click&print is unrealistic. The Council of State rejects all arguments. On the estimate: the tender expressly stated the maximum value 'is no indication for the offer amount'. On item 40: this is the heart. The Council examined confidential documents and confirms that price differences 'to a large extent' relate to item 40 in the Genk inventory. Bpost asked and was given clarification: it had lowered its unit price for that item after the tender clarification on 'mainly magazines'. Mestrabel did the same. Postalia stuck to its parcel rate, despite the express mention of 'magazines' in the clarified inventory. And Postalia's own recalculations of Bpost and Mestrabel also depart from the parcel rate — distorting their conclusions. On the price justification that was requested: for items 10 and 19 (franking 0-50g letters) both Bpost and Mestrabel were asked for explanation, accepted. Bpost relied on the legal tariff of the universal postal service. Mestrabel referred to the scale increase for Limburg and met the question on social, labour and environmental obligations — with supporting documents. On Mestrabel's action plan: even if the two contested plus points were dropped, the gap of 11.48/100 is not bridged. Outcome: suspension claim rejected.
Why does this matter?
For bidders in framework agreements with purchasing centres, this is the key learning point: read EVERY change between initial offer and BAFO. A simple addition of four words in an item description ('mainly for shipping magazines') shifted millions of euros between bidders in this case. Postalia even went so far as to base her own recalculation of the winner on the wrong rate — a clear indication she did not see the change. For contracting authorities: the Council of State accepts without problem that an indicative quantity at the request of a particular participating authority can deviate strongly from other authorities, as long as that figure reflects a real need. Hasselt could prove this. A second strong principle: a price in line with the legal tariffs of the universal postal service is by definition not abnormal. For sectors with regulated tariffs (post, energy, water, telecom) this is an important anchor.
The lesson
When you submit a BAFO after a negotiation round: compare WORD by WORD the original tender and the BAFO version. Negotiation report, Q&A, tender amendments — they look cosmetic but often determine the outcome. In framework agreements with multiple authorities or lots where quantities vary strongly, focus extra on items with the highest indicative quantities — they weigh most heavily on your total price. A clarification 'mainly X' instead of the neutral original description means you must adjust your price to rate X, not stick to it 'because the original description was broader'.
Ask yourself
For every BAFO: have you made a two-column comparison of the original tender and the BAFO version, with explicit check whether new clarifications have rate impact? For framework agreements: do you know the top 3 items that weigh most on the total price, and do you know for each whether your rate matches the specific description in the BAFO version?
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 →