An offer without a minus sign is not a negative price — and 'clarifying' it by email after the evaluation report does not save the award
The Council of State suspends the award to Oxfam-Solidarité of a textile collection contract in BEP-Environnement's recycling parks because the contracting authority assigned eleven points to a price of '€1' it treated as negative, while the bid carried no minus sign and the bidder's written confirmation arrived five days after the evaluation report on which the award is based.
What happened?
BEP-Environnement, the Namur-based intermunicipal company operating recycling parks, launched in late 2022 a four-year contract (1 March 2023 – 28 February 2027) for the collection, sorting and recycling of used textiles and leather. Negotiated procedure without prior publication, estimated volume 500 tons per year (2,000 tons total), estimated budget €50,000. The specifications stated that the 'price' criterion (45 points out of 125) would be calculated per ton collected through a three-zone formula: a bidder who invoices the contracting authority (positive price) gets 0 points, a zero price earns 10 points, and a negative price (where the contracting authority invoices the bidder — the classic textile recycling model in which the operator can resell the collected textiles) earns 10 points plus 0 to 35 points according to the formula 35 × P_n / P_min. Curitas submits a bid at €36.30/ton (positive: Curitas invoices BEP). Oxfam-Solidarité submits a bid form mentioning '€1' without a sign. First award to Oxfam on 18 January 2023; Council of State ruling of 27 March 2023 suspends that award on a different ground (unlawful selection criterion). BEP withdraws the decision on 4 April, re-evaluates the bids and — here is where the case turns — sends Oxfam a letter on 17 April 2023 asking it to confirm whether its €1 price is positive or negative. The bid evaluation report is drawn up on 20 April 2023 and assigns eleven points to Oxfam (10 + 1, treating it as a negative price). Oxfam replies by email on 25 April 2023 that its price was indeed negative. The new award decision is adopted by the board on 26 April 2023, awards the contract to Oxfam for '-€1 incl. VAT' and explicitly relies on the 20 April evaluation report. Final score: Oxfam 91 points, Curitas 89.9 points — gap of 1.1 points. Curitas takes the matter to the Council of State on extreme urgency with one core complaint: if Oxfam should receive 10 points instead of 11 on the price criterion, its score drops to 90 and the gap disappears. The Council of State accepts the complaint. Three findings. First, Oxfam's bid form did not bear a '-' sign before the €1, contrary to the commonly accepted practice for indicating a negative price (the '+' sign is likewise not added for a positive price, so the absence of a sign cannot be read as negative). Second, the very fact that BEP wrote to Oxfam on 17 April asking for clarification shows the bid raised serious doubt as to the meaning of the price. Third, and this is the killing blow: the 20 April 2023 evaluation report — on which the award explicitly relies — predates Oxfam's written confirmation (25 April). The 26 April award decision nowhere mentions that it took the confirmation email into account; it relies on a report that, at its date, only had '€1' without a sign. The Council of State does not even need to rule on the legal basis of the clarification request or the validity of such a regularisation: it suffices to find that the confirmation came too late to feed into the report and therefore the award. The complaint is serious, the balance of interests reveals no disadvantage outweighing suspension, and the award is suspended with immediate execution of the ruling.
Why does this matter?
For contracting authorities, the ruling is a direct warning on two common mechanisms: negative prices (frequent in valorisation contracts — textiles, metals, paper, biomass, certain parking or concession contracts where the concessionaire pays a fee) and clarification requests sent to bidders after opening. On the first point, as soon as specifications allow negative prices, the bid form must require an explicit sign ('+' or '-') and the absence of a sign must be treated as a positive price — not as an ambiguity to be resolved in the bidder's favour. On the second point, the ruling confirms strict procedural discipline: if you query a bidder to clarify a point in their bid and you want to rely on their answer, the evaluation report and the award decision must postdate that answer and mention it expressly. A report drawn up before the clarification cannot 'retroactively' incorporate it. For bid managers, the ruling opens a concrete attack angle: every time a competitor receives points based on a favourable reading of an ambiguous element of their bid (sign of a price, unit, scope of an item, conformity of an option), reconstruct the chronology of the file documents — date of the evaluation report, date of the award decision, dates of any clarification correspondence. A discrepancy of a few days may suffice to bring down the award. The ruling also confirms that an erroneous report date in the award decision (BEP wrote '25 April' while the actual report is from 20 April) remains a red flag for process traceability, even if here the error is qualified as a simple slip.
The lesson
If you are a contracting authority and your specifications allow negative prices (recycling, valorisation, concessions where the partner pays a fee), take three precautions when drafting the bid form. (1) Require an explicit sign — a 'positive / negative' tick box or a separate field for the sign — and write in plain text that a price quoted without a sign is treated as positive. (2) Before evaluation, check each bid on this exact point: if the sign is missing or ambiguous, treat the bid either as positive (neutral interpretation) or as irregular (depending on the degree of imprecision), but do not solicit a clarification you would then want to fold retroactively into an already drafted report. (3) If you absolutely must request a clarification from a bidder after opening, do it before drafting the evaluation report, expressly mention the clarification letter and reply in that report, and refer to it in the award decision. Otherwise the chronology alone is enough to sink your award. If you are a bid manager challenging an award, your first reflex must be to map the dates: bid opening, clarification request (if any), competitor's reply, evaluation report, award decision. Any chronological inconsistency is a serious point of attack.
Ask yourself
If the award decision relies on an evaluation report dated D, and a bidder's reply to a clarification request is dated D+5, and the award decision nowhere mentions that it took that reply into account: then the report — and therefore the award — rests on incomplete elements. Reconstruct the chronology and put it before the court.
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 →