Urgent suspension request IT services energy supplier roles Fluvius rejected — discount in price table not included in total cost is not a calculation error when tenderer confirms discount relates to existing SAP contract — restrictive interpretation of subcontracting prohibition for speciality
The Council of State rejected TheValueChain's urgent suspension request against Fluvius System Operator's award of an IT services contract to Ferranti Computer Systems, ruling that a €527,154 annual discount not included in the total cost was neither a calculation error nor a purely material error since the tenderer itself confirmed in response to a clarification question that the discount related to an existing SAP/PSLE contract without indicating any error, and that the subcontracting prohibition for the tenderer's speciality must be interpreted restrictively.
What happened?
Fluvius tendered IT services for energy supplier roles via a negotiated procedure in special sectors. TheValueChain included a €527,154 annual discount in its price table but did not deduct it from the total cost of €15.98 million. When Fluvius asked for clarification, TheValueChain confirmed the discount related to an existing SAP support contract, not the current tender, without mentioning any error. The Council rejected both grounds: (1) forgetting to deduct a discount is not a calculation error (no arithmetic operation) nor a purely material error when the tenderer's own clarification response confirmed the authority's interpretation; (2) the subcontracting prohibition for the tenderer's speciality must be interpreted restrictively, and the specifications expressly allowed near-shoring up to 20% of full-time equivalents.
Why does this matter?
This ruling clarifies that forgetting to include a discount is not a calculation error, and that a tenderer's response to a clarification question confirming the authority's interpretation precludes later claims of error. The subcontracting prohibition for speciality must be interpreted restrictively.
The lesson
Ensure every discount is unambiguously deducted in the total cost. When answering clarification questions, explicitly flag any errors — confirming the wrong interpretation will be held against you. Interpret subcontracting prohibitions restrictively.
Ask yourself
Is every discount clearly deducted in the total? Did your clarification response inadvertently confirm a wrong interpretation? Are you applying subcontracting prohibitions restrictively?
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 →