Sand bed not in the price? Then your HVAC bid is irregular — even if you think earthworks aren't your lot
The Council of State rejects the annulment appeal of an HVAC contractor whose bid was excluded because it did not include the sand bed for underground PEHD pipes in its prices — even though the contractor claimed that service belonged to the structural works lot.
What happened?
The Communauté française tendered for the construction of primary school 'La Buissonnière' in Crisnée, divided into multiple lots. Lot 4 covered HVAC and plumbing. Energys submitted a bid for lot 4. The core dispute revolved around a seemingly minor detail: who is responsible for the sand bed under underground PEHD water supply pipes? The technical clauses of lot 4 specified that PEHD pipes must be placed on a sand bed of specified depth. Energys interpreted this differently: earthworks and trenches belong to lot 1 (structural works), and therefore so does the sand bed. The issue was raised on the e-Procurement forum before submission. The contracting authority responded that the trench belongs to lot 1, but the sand bed to lot 4. After receiving bids, the authority found Energys's prices for four PEHD pipe items (diameters 50, 63, 110, and 125 mm) appeared abnormal. Energys was asked to justify its prices and explicitly confirmed it had not included the sand bed. The authority concluded the price justification could not be accepted and declared the bid substantively irregular. The contract went to Delta Thermic. Energys challenged the decision with three grounds. The Council systematically rejected all six branches of the second ground: the sand bed falls under lot 4 per the technical clauses; the forum answer confirmed without modifying the specifications; the communication delay was not shown to be insufficient; a price that doesn't cover a post's full scope is abnormal; Energys and Delta Thermic were not in comparable situations during price verification; and the motivation was adequate. The first ground (safety costs) was not examined because the irregularity finding stood regardless. The third ground (omnium maintenance contract as price criterion) was declared inadmissible for lack of interest. On confidentiality: Energys requested access to Delta Thermic's price justifications. The Council refused, holding that competitor prices are in principle protected by business confidentiality.
Why does this matter?
This ruling addresses a cluster of themes that frequently overlap in practice: lot delineation, the role of Q&A forums in interpreting specifications, and the abnormal price verification procedure. The Council confirms three key principles. First: a forum clarification confirming what was already in the specifications is not a modification. Second: if you explicitly state in your price justification that you haven't included a particular service, you cannot later claim your competitor was in the same situation. Third: a competitor's business confidentiality outweighs your desire to see their price justification, as long as the Council can review the documents itself.
The lesson
Read the technical clauses of your own lot thoroughly — including cross-references to reference specifications and standards. If the forum provides a clarification that contradicts your interpretation, adjust your price before submission. And if you explicitly write in your price justification that you haven't included a service, you close the door to any discussion afterwards.
Ask yourself
In your price calculation, have you accounted for all services specified in the technical clauses of your lot — including ancillary works like sand beds, cable ducts, or foundations that you might attribute to another lot? Check the specifications and the forum before you submit.
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 →