Adding up fee percentages as if they were euro amounts and then calling eight out of ten items 'negligible' — while each item accounts for 10% of the price criterion
The Council of State suspends the award of a framework contract for designers because the municipality of Evergem treated fee percentages as absolute amounts in its price investigation, and labelled eight of ten items as negligible while each represented a sub-award criterion worth 7 out of 70 points.
What happened?
The municipality of Evergem issued a framework contract for designers for small-scale infrastructure projects — surveying, design, tendering, site supervision, handover — through an open procedure. The estimate was EUR 400,000. The specifications provided ten inventory items. For the first eight, tenderers had to quote fee percentages (percentage for design and supervision of projects up to EUR 50,000, up to EUR 100,000, etc.). For the last two items — drafting specifications for a framework contract and additional services — they had to quote absolute prices. The award criterion 'Price' (70 points) was split into ten separate sub-criteria of 7 points each. Eight tenderers submitted offers. During the price investigation, the municipality found that only items 9 and 10 were non-negligible — because their estimate exceeded 5% of the total tender price. The other eight were considered negligible and not investigated. The contract was awarded to company W. with a score of 92.51 vs 92.09 for company S. The difference arose largely because the winner offered very low fee percentages for small projects: 13.41% vs 20% for item I.1, and 4.02% vs 6% for item I.5 — each generating a 2.31-point advantage. The Council identified three defects. First: the municipality calculated the total tender price by treating fee percentages as absolute amounts. The tender amounts in the report — EUR 3,162 to EUR 19,837 — were the sum of two absolute prices plus the percentages as numbers, which obviously didn't correspond to the actual financial scope with an estimate of EUR 400,000. Second: neither the evaluation report nor the file showed how the municipality had applied its own parameter (more or less than 5% of total price) to the first eight items, which contained percentages, not prices. Third: the municipality had valued each of the ten items as a separate sub-criterion of 7/70 points, which was irreconcilable with declaring eight of them negligible — especially since those eight covered the core services while the two non-negligible items were described as additional services. Suspension was ordered.
Why does this matter?
This ruling addresses a common pitfall in framework contracts with fee percentages: how do you conduct a price investigation when the inventory doesn't contain absolute amounts? The municipality made an elementary calculation error — adding percentages as amounts — followed by a logical error: labelling items that each account for 10% of the price criterion as negligible.
The lesson
As a contracting authority with specifications requiring fee percentages: calculate the total tender price based on estimated project values, not by treating percentages as euro amounts. And if you give each item equal weight as a sub-award criterion, those items are by definition not negligible — your price investigation must be consistent with that.
Ask yourself
During the price investigation: does your calculation of the total tender price match the nature of the prices in the inventory? And are the items you label as negligible not simultaneously separate sub-award criteria with significant weight?
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 →