Rejection of annulment appeal against award of gymnasium construction: exclusion of tender for not including coordination of other lots is justified — specification sufficiently clear for normally diligent tenderer
The Council of State rejected the annulment appeal by NV S. against the award by the Municipality of Kalmthout of lot 1 (architecture and stability) of the construction of a gymnasium to NV V., because NV S.'s tender was rightly declared substantially irregular: she had expressly stated in her price clarification that the coordination of works in lots 2 and 3 was not included in her tender, while the specifications clearly imposed this coordination obligation on the contractor for lot 1.
What happened?
The Municipality of Kalmthout conducted an open procedure for the construction of a gymnasium divided into three lots, with price as sole award criterion. The technical specifications required the contractor for lot 1 to coordinate works across all lots, with a detailed task description 'for all lots'. Three tenderers submitted offers. NV S. offered the lowest price but, after multiple rounds of clarification, expressly stated that coordination of works in lots 2 and 3 was not included in her tender, interpreting the obligation as limited to her own lot. A third tenderer also failed to include this coordination. Both tenders were declared substantially irregular, and the contract was awarded to the only compliant tenderer, NV V. The Council rejected all three grounds: (1) the specification expressly referred to coordination 'in the other lots' and a task description for 'all lots', and the references to final cleanup responsibility and the 365-day execution term for the overall contract supported this interpretation — the absence of a formal pilot contract did not negate the general coordination obligation; (2) the specification was sufficiently clear for normally diligent professionals, and the fact that two tenderers misinterpreted it did not prove ambiguity; (3) the price investigation was adequate, and when no abnormal prices are found, there is no obligation to reproduce the analysis in extenso in the evaluation report. The claim for damages was also rejected.
Why does this matter?
This ruling clarifies that a specification referring to coordination 'in the other lots' with a task description for 'all lots' cannot be restrictively interpreted as limited to the tenderer's own lot, even without a formal pilot contract arrangement. It also confirms that multiple tenderers misinterpreting a specification does not prove the specification is unclear — the standard is what a normally diligent tenderer specialized in the relevant field could understand.
The lesson
As a tenderer: always read specifications as a whole. When a post refers to coordination 'in the other lots' and contains a task description for 'all lots', assume a coordination obligation for all lots exists, even without an express mention of pilot contracting. If in doubt, ask a clarification question before the submission deadline. As a contracting authority: formulate coordination obligations unambiguously, with a separate description of exact tasks and responsibilities.
Ask yourself
As a tenderer: have you read all specification posts in conjunction with the whole? Have you verified whether a coordination obligation for other lots exists? As a contracting authority: have you described the coordination obligation clearly enough?
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 →