Dropping a fuel surcharge after the BAFO is not a correction but a second chance: the Council of State suspends the National Lottery’s logistics framework contract
The National Lottery withdrew its first award of the transport lot, awarded it again on 16 June 2026 to the same tenderer, and relied for that on the latter’s statement of 15 June 2026 that it was dropping the fuel surcharge contained in its final tender — but the Council of State held that the surcharge was a self-devised, monthly revisable price-revision mechanism that rendered the price commitment uncertain and the tender substantially irregular, and that a final tender may no longer be repaired once the common submission deadline has passed, so the award was suspended.
What happened?
The National Lottery tendered a services contract for a framework agreement with a single operator per lot covering the logistics and transport of parcels, pallets and promotional and visibility material, in two lots, published nationally and at European level. It opted for the competitive procedure with negotiation under article 38, § 1, 1°, c), of the Law of 17 June 2016, under specifications FIN/PRO/2025/20. Lot 1 — the transport of envelopes, parcels and pallets, mainly by road in Belgium — is the only one at issue. By the closing date of 20 November 2025, eight undertakings had applied, including one consortium. For lot 1, two candidates were selected on 7 January 2026: bpost together with company S. as a consortium, and company D. Both were invited on 23 January 2026 to submit a tender, with price (40 points), approach and quality assurance (45 points) and two corporate-responsibility criteria (7.5 points each) as award criteria. Point 1.12 of the specifications provides that the unit and global prices cover ‘all costs, measures and charges of any kind’ inherent in performance — expressly including movement, carriage, handling and transport. That mirrors article 32, § 3, of the royal decree of 18 April 2017. The only price revision permitted is the one in point 2.9.2 of the specifications. After an initial analysis, the National Lottery invited both tenderers to a feedback meeting on 26 March 2026 and then to submit an amended tender by 9 April 2026 at 11 a.m. Company D.’s tender stated that for fixed transport runs the fuel surcharge was included in the rates, but that for on-demand runs a fuel surcharge did apply, reviewed monthly — and that the tenderer reserved the right to revise its rates where fuel costs rose beyond its control. The authority found that fuel surcharges are not permitted under the specifications, asked for confirmation on 16 April 2026, and let company D. submit a corrected tender with ‘all-in rates’ on 21 April 2026. On 12 May 2026 it awarded lot 1 to company D. Bpost challenged that award on 3 June 2026 under extreme urgency. Having read the application, the National Lottery took legal advice and withdrew its own decision on 16 June 2026: it had failed to state whether the irregularity found was substantial, or what legal consequence should follow, whereas the Council of State has regard only to the reasons expressed in the decision. By judgment no. 267.279 of 29 June 2026 the first application was therefore dismissed as devoid of purpose. In that same decision of 16 June 2026, however, the National Lottery again awarded lot 1 to company D. Its reasoning: the fuel surcharge was not a substantial irregularity because it concerned only a handful of on-demand items of limited value and could operate in both directions; and in any event company D. had stated on 15 June 2026 that it was dropping the surcharge entirely without altering the prices submitted on 9 April 2026, so that the corrected tender of 21 April 2026 could be ‘disregarded entirely’ and two tenders without a fuel surcharge could be compared. That, it said, offered maximum legal redress. Bpost challenged the new decision too, on 7 July 2026. The Council first had to rule on an objection of inadmissibility. The National Lottery and company D. pointed out that bpost had tendered together with company S. but litigated alone, whereas under settled case law (judgments no. 172.838 of 28 June 2007 and no. 244.315 of 30 April 2019) the members of a consortium without legal personality must in principle act jointly. The tender, however, included a term sheet stating that bpost would represent company S. ‘vis-à-vis the National Lottery in connection with the tender procedure, to do everything necessary and useful in connection with the Contract’. An action against a decision of the National Lottery is, by its object and effects, also an act ‘vis-à-vis’ that authority, the Council held, and the legal-protection stage may form part of ‘doing everything necessary and useful’. Moreover the contested decision had been sent, by email and registered letter, only to bpost and not also to company S. Referring to the Court of Justice’s judgment of 8 September 2005 in case C-129/04 — which accepts a joint-action requirement precisely because members can settle that power in advance by internal agreement — the Council concluded that the objection lacked the high degree of seriousness required to be upheld already in an extreme-urgency procedure. Upholding it at once could hollow out the effective legal protection intended by the Law of 17 June 2013: the contract could be concluded and performed before it later emerged that bpost had validly acted on company S.’s behalf as well. On the substance, the Council read the tenders itself. In both its initial and its amended tender, the successful tenderer expressly reserved the right to revise the rates charged if fuel costs rose. Contrary to what the observations claimed, nowhere does it say that prices would fall if fuel prices fell. That any adjustment would be made ‘by mutual agreement’ does not remove the reservation. The tenderer had therefore added a price-revision mechanism of its own that is absent from the contract documents and departs from the obligation to build all costs inherent in performance — movement, carriage, transport — into the prices. That affects comparability: a tenderer offering an all-inclusive price bears the risk of dearer fuel itself, while the successful tenderer shifts that risk at least partly onto the authority. The tender did not even contain a properly defined revision formula: no objective index, no base value, no method of calculation and no cap, merely a reference to the tenderer’s general website. The final price therefore could not be derived from the tender itself. A tenderer that adds a condition not laid down in the specifications renders uncertain its commitment to perform on the stated terms; that it filled in the inventory is then irrelevant, precisely because of the reservation. The argument that only a very small part of the contract was involved did not help: article 76, § 1, third paragraph, of the royal decree of 18 April 2017 allows no margin according to the size of the uncertainty. Nor did the specifications’ unforeseen-circumstances clause (point 2.9.5, B) save the tender: an exceptional regime for the performance stage does not entitle a tenderer to write a self-devised, monthly revisable fuel surcharge into its tender and unilaterally extend it to any future price rise. That bpost, as the incumbent operator, had itself requested a price revision on account of higher fuel and energy prices — under an existing revision clause and article 38/9 of the royal decree of 14 January 2013 — did not deprive it of the complaint: that concerns the performance of a running contract, not the award of a new one. The tender was prima facie substantially irregular. There remained the question of consequence. It was common ground that the amended tender of 9 April 2026 was the final tender; the authority itself disregarded the corrected tender of 21 April 2026 entirely. Article 38, § 5, of the Law of 17 June 2016 permits negotiation on initial and all subsequent tenders, except final ones; article 38, § 8, requires the authority to close negotiations with a common deadline and then test the final tenders against the minimum requirements and the award criteria. And article 76, § 4, first paragraph, of the royal decree of 18 April 2017 states in terms that that paragraph — with its regularisation option — applies only to tenders that are not final; a final tender falls under paragraph 3, which requires a substantially irregular tender to be declared void. The National Lottery therefore could no longer allow the successful tenderer to withdraw, neutralise or negotiate the fuel surcharge once its final tender had been submitted. Yet that is what it did by accepting the statement of 15 June 2026. That tenderer was thus able to cure a substantial irregularity after the common deadline had passed, while the other tenderer could no longer alter its final tender — incompatible with the principles of equality and transparency. The final tender had to be assessed as submitted within the deadline, fuel surcharge included, and therefore should have been declared void. The first limb of the first plea was serious to that extent. The Council admitted company D.’s intervention and ordered the suspension, under extreme urgency, of the new award decision of 16 June 2026. In so far as the application also concerned the implicit decision not to award the contract to bpost, it was dismissed.
Why does this matter?
This judgment settles two things that are constantly conflated in negotiated procedures. The first is the moment at which flexibility ends. A competitive procedure with negotiation invites adjustment: feedback meetings, amended tenders, another round. But the moment the authority closes negotiations and sets a single common deadline for final tenders, the hatch shuts. Article 76, § 4, of the award decree says literally that the regularisation regime does not apply to final tenders; what remains is paragraph 3, which leaves the authority no choice: a substantially irregular final tender is declared void. There is no middle path in which the successful tenderer simply drops an inconvenient clause. The second is what a price reservation does. The National Lottery reasoned in volumes: the surcharge covered only a few on-demand items of limited value, hence marginal. The Council reasons in comparability. So long as one tenderer must build the fuel risk into its rates and the other may pass it on, the tenders being compared are not equivalent — and no percentage cures that. Article 76, § 1, third paragraph, allows no margin according to the weight of the uncertainty. What seals the case is that the surcharge had no calculable formula at all: no index, no base value, no cap, just a link to the tenderer’s website. A price you cannot derive from the tender is not a price you can compare. Also striking is what the withdrawal ultimately gained the National Lottery. It did exactly what a diligent authority should do when an action exposes a defect in reasoning: take advice, withdraw, decide again. But it used the second chance to change the classification rather than draw the consequences, leaning on a statement postdating the final tender. A withdrawal repairs the reasoning; it does not reopen negotiations. Finally, a procedural point: a single member of a consortium going to the Council of State alone normally runs into the rule that members must act jointly. Here a representation clause in the term sheet saved the action — reinforced by the fact that the authority itself had notified the decision to bpost alone. The Council nonetheless keeps to its line that objections of inadmissibility are dismissed rather than upheld in extreme-urgency proceedings unless they show a high degree of seriousness; nothing is yet definitively decided on the merits of the objection.
The lesson
As a contracting authority in a competitive procedure with negotiation, mark sharply when negotiations close. From the common deadline for final tenders you have no discretion left: a substantially irregular BAFO is declared void, full stop. After that moment, do not ask a tenderer to confirm, correct or drop anything — not even if it costs you the best tender, and least of all after a competitor has taken you to the Council of State. If you withdraw an award decision because of a defect in reasoning, use the reconsideration to draw the consequences properly, not to rewrite the classification. And judge a price reservation not by its weight in euros but by its effect: if it makes the commitment uncertain or the tenders incomparable, it is substantial, however small the items concerned. As a tenderer, do not write your own price-revision mechanism into your tender where the specifications provide one. A fuel surcharge, a rate you ‘review monthly’, a right to revise if costs rise — these are reservations, even if you fill in the inventory neatly and even if you add that it will be done by mutual agreement. If you find the specifications’ price structure untenable, raise it before submission; afterwards it is too late. And if you are the losing tenderer: check whether the reservation was in the final tender, because that is the version that counts — everything the awardee corrects afterwards strengthens your file rather than weakening it. If you tender as a consortium, settle in writing in advance who may litigate on the group’s behalf; one clause saves you an objection.
Ask yourself
Do you know exactly which tender in your file is the final tender, and from which date nothing may be adjusted? Have you tested every irregularity in that final tender against the four criteria of article 76, § 1, third paragraph — discriminatory advantage, distortion of competition, impeded assessment or comparison, uncertain commitment — rather than against its share of the contract value? Does any tender contain a price-revision mechanism absent from your specifications, and if so, can the final price still be derived from the tender itself? As a tenderer: is there a reservation somewhere in your conditions, assumptions or explanatory notes that you never meant as one? And as a consortium: is it in writing who may bring proceedings on the group’s behalf?
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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 →