School construction at Jemeppe-sur-Sambre: second suspension – responding to a price justification request by invoking a material error does not constitute a unilateral modification of the tender
The Council of State orders, for the second time, the suspension of the French Community's decision to award the school construction contract at Jemeppe-sur-Sambre, because the contracting authority committed a manifest error of assessment by qualifying as a substantive irregularity (unilateral modification of the tender) the tenderer's response to a price justification request in which it invoked a material error.
What happened?
The French Community tendered construction of a primary school at Jemeppe-sur-Sambre. After a first suspension (judgment no. 258.616 of 26 January 2024), the authority withdrew the first award and adopted a new one on 6 February 2024. Six of seven tenderers were excluded for substantive irregularity. Tradeco's offer was excluded for allegedly modifying its tender by invoking a material error in its price justification response for item 71.11.1.a. The Council held this was not a unilateral modification: the tenderer was responding to an invitation, a rectification request is not automatically a modification attributable to the tenderer, and the authority had not actually modified the offer. Manifest error of assessment, suspension ordered.
Why does this matter?
This ruling clarifies the distinction between a unilateral tender modification and a price justification response invoking a material error. Invoking an error in response to a price justification request is not a tender modification. This was notably the second suspension in the same procurement procedure.
The lesson
As a contracting authority: do not automatically treat a price justification response invoking a material error as a unilateral tender modification. If you refuse the rectification, the offer has not been modified. As a tenderer: you may invoke a material error in your price justification without this constituting a tender modification.
Ask yourself
As a contracting authority: have I correctly distinguished between a tender modification and a price justification invoking a material error? As a tenderer: is my response framed as a justification rather than a unilateral modification?
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 →