Hide your purchase price in the rental cost, and you write your own bid into the bin
The Belgian Council of State dismisses Symobo's challenge: by openly admitting in its price justification that it had shifted part of the purchase price into the rental items 'for commercial reasons', it made its bid incomparable with the competitor's — and therefore substantially irregular.
What happened?
After the July 2021 floods, the City of Verviers urgently needed prefab containers for 124 schoolchildren while rebuilding the Ensival school — 34 months of rental (August 2023 to June 2026) with an option to buy at the end. This was already the second attempt: a first award to Symobo had been suspended in March 2023 (arrest 256.032). Verviers issued a new tender in April 2023. Two bids came in: Symobo at €2,999,190 ex VAT, Degotte at €4,307,570 ex VAT — a €1.3M gap. Symobo was closer to the €2,045,500 estimate. The contracting authority noticed that unit prices for item 3 (placement and assembly) and item 8 (option to purchase modules after rental) diverged sharply: Symobo's item 8 was 55.42% below the average of the two bids. On 2 June 2023, Verviers asked both bidders for price justifications. Symobo's reply on 15 June 2023 contained a fatal admission: it explained that it had 'for commercial reasons' shifted part of the purchase price into the rental cost — rental and purchase option were 'communicating vessels'. The argument: it didn't matter, since the tender used the total price (rental + option) as the sole award criterion. Degotte, on the other hand, justified its higher purchase price by (1) anticipating the absence of price revision in the tender and (2) the financial cost of deferred payment. Verviers accepted that explanation and awarded the contract to Degotte on 20 July 2023 for €4,566,024.20 incl. VAT and options. The financial director gave a 'positive opinion with remarks': he found Degotte's amount 'incredibly high' and suggested re-tendering — but the council ignored that suggestion. Symobo went to the Council of State seeking emergency suspension on three grounds: (1) its price justification was correct, Verviers wrongly rejected it and wrongly accepted Degotte's; (2) Verviers should have also checked total prices; (3) Verviers failed to motivate why it ignored the financial director's advice. The Council rejected all three. Critical point: by admitting it had shifted prices between items, Symobo itself proved its bid made comparison impossible. Verviers expressly reserved the right to lift — or not lift — the purchase option. With the option lifted, Symobo was cheaper; without, Degotte was. Genuine comparison based on the real underlying cost per item had become impossible. On the financial director's advice: it was a 'legality opinion' (mandatory above €22,000 ex VAT under art. L1124-40 CDLD), but it was positive. The re-tender suggestion was about opportunity, not legality — so no specific duty to motivate departure from it. Suspension request rejected; Symobo also pays €770 in procedural costs.
Why does this matter?
In contracts with a base price plus an option (rental + purchase, base + maintenance, supply + after-sales service), bidders naturally tend to play commercially with the split: low rent compensated by high purchase option, or vice versa. That seems harmless as long as the total checks out. This arrest teaches that this can fatally damage your bid — especially when the contracting authority reserves the right to take or leave the option. Once a bidder writes that down in a price justification, there's no way back: the bid becomes 'incomparable' under art. 76 §1 KB Placement and must be rejected. For bid managers: the price per item must reflect the actual cost per item. For contracting authorities: in mixed formulas (base + option), the tender must explicitly require each price to be cost-covering on its own.
The lesson
If you submit a bid with a base service plus an option that the buyer can later choose to lift or not, treat that option as a separate commercial proposition. Don't shift costs between items, even if the total looks the same. And if you then have to give a price justification: NEVER write that you 'redistributed amounts for commercial reasons' — that's signing your own death warrant.
Ask yourself
If your tender has a purchase option or uncertain extension: can each price item stand on its own? If the buyer takes only the base (or only lifts the option), does your price still hold? And in your price justification: do you anywhere use the words 'commercial redistribution', 'communicating vessels' or 'spread across items'? Delete.
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 →