When the contracting authority offers a chance to regularise and you refuse — that equals 'I do not accept the contract terms'
The Council of State dismisses Verhoeve Marc's challenge to the rejection of his lowest bid for the redesign of the Waaitjesstraat in Lebbeke: he read item 5 of the bill of quantities (600 m² of cobblestone surfacing) as covering only the repair of the ~50 m² still in place, refused the formal offer to regularise, and stuck stubbornly to his own reading — a stance the Council equates with non-acceptance of the contract terms.
What happened?
The municipality of Lebbeke wanted to redesign the Waaitjesstraat — a slow road between Hoeksken and Baardgemenstraat. Negotiated procedure without prior publication, price as sole award criterion. The specifications described the work as a restoration 'by means of unbound semi-paving and cobblestone surfacing'. A graphic plan on page 23 showed the full 600 m² road section marked with an orange dotted line for 'cobblestone surfacing'; the other segments with a yellow line for 'limestone + porphyry'. The explanatory note under I.4 indicated 600 m² of 'cobblestones to be laid'. The summary bill of quantities had item 5: 'restoring the cobblestone surfacing (disappeared or sunken)' — same 600 m². Three bidders. Verhoeve Marc was the lowest. In an accompanying letter Verhoeve explained he had calculated item 5 the same way as the limestone laying — and would only restore the 'few cobblestones still present' (~50 m²). No price for laying 600 m² of new cobblestones. After a first cancellation and a previous Council of State ruling (no. 256.414), on 19 June 2023 Lebbeke sent a formal invitation to regularise under article 76 §5 of the Royal Decree of 18/04/2017: please confirm in writing on oath that you will lay the 600 m² of cobblestones in line with the specifications. Verhoeve replied on 23 June: 'We will not deviate. If you disagreed, you should have flagged it in the report. […] If the contract cannot be awarded according to my work description, then the procedure must be stopped and a new tender launched.' On 10 July 2023 the municipality declared Verhoeve's bid invalid and awarded the contract to Green Road. State Councillor Jan Clement weighs: the technical objective in I.1, the graphic plan, the explanatory note in I.4 and item 5 of the bill of quantities all read together to one conclusion — 600 m² of new cobblestones, not a restoration of the few square metres still in place. Verhoeve had read selectively. He had filed no clarification request before submission, and the other bidders had read the specifications correctly. The offer to regularise was not an empty gesture: it gave Verhoeve a real opportunity to expressly conform. By rejecting that offer and clinging to his price and reading, Verhoeve implicitly declared he did not accept the contract terms — which under settled case law (Council of State, 21 August 2017, no. 238.959) leads to rejection of the bid. Action dismissed. Verhoeve pays €200 registry, €24 contribution, €770 procedural cost award.
Why does this matter?
Two lessons. For bidders: read the specifications as a whole — technical clauses, drawings, summary bill of quantities — and where points seem ambiguous, file a clarification request BEFORE submission. If you don't, and the other bidders have read it correctly, the burden of proof shifts to you. Second: when the contracting authority formally offers regularisation under article 76 §5, take it seriously. Stubbornly clinging to your own interpretation will be read by the Council as 'I do not accept the terms' — fatal to your bid and your appeal. For contracting authorities: a regularisation offer can rescue you from a difficult situation where the lowest bidder misread the specifications. Make it written and explicit, and a refusal makes your invalidation case much stronger.
The lesson
If you read item 5 of a bill of quantities differently from the contracting authority, and you receive a formal regularisation invitation under article 76 §5: don't refuse stubbornly. Writing 'we will not deviate' effectively declares non-acceptance of the contract terms — equivalent to non-compliance. Read the specifications IN FULL before bidding: technical clauses, graphic plan and summary bill together. If the other bidders read it consistently, your own interpretation will struggle to hold up.
Ask yourself
You receive a written invitation to regularise under article 76 §5 — concretely: signing a sworn statement that you'll execute according to the specifications. Two scenarios: (1) you stick to your own reading and refuse to sign — accept that the Council of State will read this as non-acceptance of the contract terms, and you'll lose any appeal; (2) you sign, and resolve any extra-work issues later through claims or execution disputes. Option two keeps your chance at the contract alive.
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 →