Rejecting a bid for one item worth 0.12% of the total? Then you really must explain why that's 'substantial'
The Belgian Council of State suspended the award of a bike path in Seraing because the city declared Colas Belgium's bid void over a single irregular item representing 0.12% of the bid total, without anywhere explaining why that irregularity was 'substantial'.
What happened?
On 26 January 2023, the City of Seraing publishes a tender for a bike path between Seraing and Neupré. The tender is based on the Walloon standard Qualiroutes specifications and includes a detailed bill of quantities. That bill contains a material error: item 3 ('Mise à blanc avec extraction, avec conservation sur le site — D.1.5') refers to article D.1.5 of the technical clauses — but that article describes 'mise à blanc sans extraction'. The contracting authority actually meant article D.1.6, which covers clearing with stump extraction. Colas Belgium submits its bid on 15 March 2023. On 17 May, the project author (Province of Liège) requests price justifications for no fewer than 35 items with 'abnormally low or high prices', including item 3. Colas responds on 30 May, citing a subcontractor's price for 'gyrobroyage à ras du sol' (= mowing stumps to ground level without removing them). The project author rejects this justification: the price covers 'only ground-level mowing without stump extraction' and therefore 'does not respect the item's technical clauses'. Conclusion: irregular bid. On 23 June 2023, Seraing's council declares Colas's bid (and three others) void and awards the contract to E.T. On 19 July, Colas receives a registered letter with as sole motivation the same sentence from the 7 June report: 'the price submitted does not respect the technical clauses of the item. Consequently, its bid is irregular'. No analysis report attached, no reference to article 76 §1, no explanation of why this single item destroys the entire bid. Colas seeks emergency suspension on 3 August 2023. Three core arguments: (1) item 3 explicitly refers to D.1.5 (without extraction), so its price does respect the technical clauses; (2) if there's a material error in the bill of quantities, the contracting authority should have corrected it (art. 34 KB Placement); (3) even if there is an irregularity, it concerns barely 0.12% of the bid amount — not substantial. The Council of State takes up the third ground and is merciless. Seraing's motivation fails the formal motivation requirements of the law of 29 July 1991. None of the three categories of art. 76 §1, paragraph 4 KB Placement are mentioned. None of the possible consequences from paragraph 3 (discriminatory advantage, distortion of competition, impossibility of comparison, non-existent/incomplete/uncertain commitment) is identified. Even more: 'contradiction with technical clauses' is by definition the essence of every irregularity — substantial or not. Naming it doesn't prove it's substantial. And item 3 represents only 0.12% of the bid total. Seraing nowhere explains why a price on that single tiny item is abnormally low or high, or why it should void the whole bid. Later explanations in court submissions cannot repair this initial motivation defect — settled case law. Suspension granted, immediate execution of the judgment ordered.
Why does this matter?
For contracting authorities: 'irregular' is not a magic word. To exclude a bid you must (1) name the specific article 76 §1 you rely on, (2) identify the type of irregularity, and (3) explain why it is substantial — i.e. which concrete consequence from paragraph 3 occurs. This is especially crucial for irregularities that look minor on their own (like one item worth a fraction of the total). For bid managers: if you lose with motivation 'your bid is irregular', always check whether the contracting authority has (a) motivated the substantial character and (b) shown numerically why the price is abnormal. A purely qualitative finding 'doesn't respect the technical clauses' is not motivation — it's just a conclusion.
The lesson
If you're a contracting authority voiding a bid, run through four checkpoints in your decision: (1) explicitly cite art. 76 §1 KB Placement; (2) state the type of irregularity; (3) explain which concrete consequence from paragraph 3 occurs (discriminatory advantage, no comparison possible, uncertain commitment...); (4) for price-related voidings: numerically demonstrate what is abnormally low/high, and why the item is not 'negligible'.
Ask yourself
If you exclude a bid for an irregularity on a single item worth less than 1% of the total amount: does your award decision contain a paragraph that explicitly explains why this single item carries enough weight to void the entire bid? If not: your decision is a ready-made suspension on a silver platter.
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 →