Rejection of annulment application against tender exclusion for deviating cable quantity: consciously using a different lump-sum quantity without formal correction under article 79 Royal Decree 2017 constitutes substantial irregularity, not a calculation error requiring ex officio correction
The Council of State rejected the annulment application by BV A. against the award by the Flemish Community's Facility Management Agency of lot 2 of the office floor renovation at VAC Hasselt to nv P., because the exclusion of BV A.'s tender as substantially irregular was justified: the price clarification revealed that BV A. had consciously used a different lump-sum quantity of horizontal cabling (3,760 lm instead of the specified 4,770 lm) without formally correcting this under article 79 of the Royal Decree of 18 April 2017 with a justification note, leaving no legal basis for the authority to correct the tender.
What happened?
The Flemish Community's Facility Management Agency tendered works at VAC Hasselt through an open procedure with price as sole criterion. The measurement schedule specified 4,770 running metres for horizontal cabling post 64.1.2.3. BV A.'s price clarification revealed it had used only 3,760 running metres (40m × 94 data points), a 1,010 metre shortfall. The authority declared the tender substantially irregular and awarded to the only regular tenderer. Before the Council, the authority tried to invoke an additional irregularity ground not mentioned in the contested decision — the Council rejected this as disloyal litigation, even if the irregularity concerned public order. On the merits, the Council held that BV A.'s deviation was not a calculation error (article 34) or a formal correction (article 79) — BV A. had left the lump-sum quantity unchanged at 4,770m while actually calculating with a different quantity, without a justification note. The price clarification could not be equated with a correction request. That BV A. would still be cheapest after recalculation was irrelevant: the irregularity prevented offer comparison, requiring exclusion under article 76 §1. The S/FTP versus U/FTP discrepancy between the measurement schedule and technical specifications was immaterial. The second ground challenging the anonymised award report was inadmissible: a tenderer whose exclusion was lawful lacks standing to challenge the award to a competitor.
Why does this matter?
This ruling clarifies the boundary between calculation errors (article 34, requiring ex officio correction) and conscious quantity deviations without formal correction (article 79). When a tenderer leaves the lump-sum quantity unchanged but actually calculates with a different quantity — discovered only through price clarification — this is a substantial irregularity that cannot be 'repaired'. The authority is not obliged to further inquire as if it were a formal correction. The ruling also confirms that invoking a new irregularity ground for the first time before the Council constitutes disloyal litigation, even if the irregularity concerns public order.
The lesson
As a tenderer: when you believe lump-sum quantities are incorrect, formally correct them in your tender under article 79 §2 with a justification note. Do not leave the quantity unchanged while calculating with a different figure — this makes your tender substantially irregular. As a contracting authority: a price clarification revealing a quantity deviation does not oblige you to treat it as a formal correction. Include all irregularity grounds in the award decision — do not raise new ones before the Council.
Ask yourself
As a tenderer: have you formally corrected deviating quantities in the measurement schedule with a justification note? Or did you leave the schedule unchanged while calculating differently? As a contracting authority: does a price clarification reveal a deviation? Have you included all irregularity grounds in your decision?
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 →