Missing unit prices in bill of quantities does not constitute substantial irregularity when total prices per item are filled in
The Council of State rejects the annulment appeal against the award of a construction contract for an agri-food platform in Gambia, ruling that the failure to fill in unit prices in the bill of quantities does not constitute a substantial irregularity when total prices per item are filled in and unit prices can be derived through simple division.
What happened?
ENABEL launches an open procedure for the construction of an agri-food platform and wholesale market in Jenoi (Gambia), with price as the sole award criterion. Three tenders are received: the consortium C.+S. (€1,183,488.78 — lowest), the applicant O. (€1,289,388.86) and tenderer C. (€2,296,923.24). The consortium C.+S. filled in only the total price per item (in EUR and GMD) in the bill of quantities, but not the unit prices themselves. ENABEL accepts the tender because the unit prices can be obtained through simple division of the total price per item by the presumed quantities, and awards the contract to C.+S. The applicant seeks annulment, arguing that the missing unit prices constitute a substantial irregularity. In the rejoinder, the applicant raises two new pleas: one about the timeliness of tender submission and alleged premature opening, and one about inadequate price investigation for 20 allegedly abnormal items.
Why does this matter?
This judgment clarifies the application of Article 76, § 1 of the Royal Decree of 18 April 2017 regarding substantial irregularities when unit prices are not filled in the bill of quantities. The Council rules that filling in total prices per item suffices when unit prices can be derived through simple division. The mere fact that unit prices are not explicitly stated does not constitute a substantial irregularity if (1) the tender contains a price for each item, (2) the unit prices can be established in an indisputable manner, (3) the assessment and comparison of tenders was not impeded, and (4) the tenderer's commitment has not become uncertain. The judgment also confirms that new pleas raised in the rejoinder are inadmissible when the applicant already knew the underlying facts at the time of filing the application.
The lesson
As a tenderer: always fill in all fields of the bill of quantities, including unit prices — even though the Council rules here that the omission was not substantial, this depends heavily on the specific circumstances. As a contracting authority: you may accept a tender where only total prices per item are filled in, provided the unit prices can be derived through simple arithmetic and you expressly motivate this in the award decision. As an applicant: raise all your pleas in the application — new pleas in the rejoinder are only accepted if based on facts you could not have known earlier.
Ask yourself
Did you as a tenderer fail to fill in unit prices in the bill of quantities? Know that this carries risk, even though in certain circumstances it may not constitute a substantial irregularity. Are you considering raising new pleas in the rejoinder? Demonstrate that you could not have known the underlying facts earlier.
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 →