Rejection of suspension application against award of church tower viewpoint works in Ettelgem: arithmetic verification (options not included in total price) adequately motivated via VTG forms, and recognition in subcategory F2 reasonably acceptable for predominantly steel works
The Council of State rejected the suspension application by a temporary association against the award by the City of Oudenburg of phase I of the church tower viewpoint works in Ettelgem to bv S.M., because neither ground was serious: the arithmetic verification that changed the ranking (the applicants had not included the mandatory options in their total price) was adequately motivated through VTG forms transmitted after the award, and the choice for recognition in subcategory F2 (construction of metal load-bearing structures) instead of category D or F was reasonably acceptable given the predominantly steel works.
What happened?
The City of Oudenburg tendered phase I of converting the Sint-Eligiuskerk tower in Ettelgem into a viewpoint through an open procedure with price as the sole award criterion. The specifications included mandatory options that had to be offered. The recognition requirements were amended twice via errata, ultimately settling on subcategory F2 class 3 (construction of metal load-bearing structures). Five tenders were received. The applicants initially ranked first at €511,449.10 but had not included the mandatory options in their total price — their price was nearly 15% below the weighted average. After arithmetic verification, they were reclassified to second place (€586,305.91) behind bv S.M. (€552,983.39). The award decision of 16 September 2025 was challenged on two grounds. The first ground comprised three parts: (1) absence of a tender opening report — rejected because an auto-generated BOSA platform report existed and active distribution was not required; (2) insufficient motivation for the ranking change — rejected because the VTG forms transmitted on 24 September 2025 enabled the applicants to understand why their price increased (options not included) and the ranking changed; (3) failure to account for quantity corrections — rejected because the forms showed the corrections were accepted. The second ground challenged the recognition requirements: the applicants argued subcategory F2 was insufficient and category D or F should have been required given the works' complexity. The Council found the authority could reasonably opt for F2 as steel work represented the largest percentage of the contract sum. Ancillary works were covered by article 5 §6 of the Royal Decree of 26 September 1991. A site coordination post alone did not prove complexity, nor did execution in a church tower necessarily require qualification as a complex contract. Both grounds were rejected.
Why does this matter?
This ruling clarifies two important issues. First, the scope of the formal motivation obligation when arithmetic verification changes the ranking: when the award decision itself is concise but the authority subsequently provides detailed calculation forms enabling informed assessment, the normative purpose of the motivation obligation is achieved. Second, it provides guidance on choosing between a recognition category and subcategory: the mere fact that a contract includes multiple types of works does not make it a 'complex contract' — what matters is whether the specialist work represents the largest percentage of the contract sum. A site coordination post is insufficient, and execution at a difficult location does not necessarily require classification as complex.
The lesson
As a contracting authority: when arithmetic verification changes the ranking, ensure tenderers can access detailed calculation forms. The normative purpose of the motivation obligation can be achieved through documents communicated after the award. Choose the recognition category based on the actual subject matter and scope: when specialist work represents the largest share, the corresponding subcategory suffices. As a tenderer: always include mandatory options in the total price — omitting them can lead to significant price corrections. When challenging recognition requirements, verify whether specialist work truly represents the largest percentage.
Ask yourself
As a contracting authority: have you verified whether all tenderers included mandatory options in their total price? Have you determined recognition requirements based on the actual subject matter? As a tenderer: did you include mandatory options in your total price? When challenging recognition, can you demonstrate the specialist work is not the largest share?
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 →