A 216.69-euro gap at De Lijn: a contradiction between specifications and drawings is not an omission, and a bare request for clarification is not a tip-off
Wycor submitted the lowest price to De Lijn for the refurbishment of its management building in Gentbrugge, but lost the contract by 216.69 euros after the authority charged it, and not nv Juri, with a supplement; the Council of State dismissed its action because a contradiction between the specifications and the drawings is not an omission within the meaning of article 100, § 2, 1°, of the royal decree of 10 January 1996, so the omission formula did not apply and the plainly worded request for clarification sent to the three other bidders was not an illicit prompt.
What happened?
During 2005 De Lijn decided to tender, by open adjudication, a works contract for the shell, finishing and technical installations of the refurbishment of its administrative office complex at Brusselsesteenweg 361 in Gentbrugge, under special specification no. 04031. The contract was published in the Bulletin of Tenders on 17 February 2006. Two items would decide the whole dispute. Article 10.02 referred to ‘mobile partition walls’, article 10.02.11 to ‘wooden folding walls’, while the drawing showed a mobile wall with six panels. And article 21.09.12.11 described vertical distribution columns between floor and ceiling of the Stagobel brand, both types POL T10 (fixed) and POL M10 (movable), while items 382, 428 and 475 of the bill of quantities simply mentioned a number of columns. At the opening of the tenders on 23 March 2006 there were four bidders. Wycor had the lowest price: 1,869,153.76 euros excluding VAT, against 1,901,590.84 euros for nv Juri. In its tender Wycor flagged both ambiguities — expressly not under the heading ‘omissions’ — and transparently gave alternative prices: 530 euros extra for a folding wall with four panels, 1,408.00 euros extra for six panels, and a unit price of 655.44 euros for a movable column against 255.44 euros for a fixed one. Abetec, the expert appointed by De Lijn, then asked the three other bidders by letters of 5 April 2006, in two lines and without further explanation, what their unit price covered: brand, type, costing. On 6 April 2006 nv Juri replied that it had offered a Fabima-type mobile panel wall with six panels and movable POL M10 columns, based on a quotation from its subcontractor Hewi and on a site visit before the adjudication. The award report called both points an ‘omission’ and drew consequences that affected only Wycor: its price was increased by 1,408.00 euros for the wall and by 83 units at 655.44 euros, that is 54,401.52 euros, for the columns. Nothing was charged to Juri, partly because its unit price of 272.80 euros matched the 275.00 euros it had charged in late 2002 for the same kind of columns in an earlier phase. The final ranking tipped: Juri first at 1,917,209.83 euros, Wycor second at 1,917,426.52 euros — a gap of 216.69 euros. On 19 April 2006 De Lijn’s board awarded the contract to nv Juri for 1,916,725.10 euros. Wycor brought its action on 10 July 2006. More than five years later, after a hearing on 29 March 2011, the Council of State dismissed it. The supplementary briefs both parties had filed outside the general procedural rules were excluded from the debates. On the merits, the Council held that an omission within the meaning of article 100, § 2, 1°, of the royal decree of 10 January 1996 is ‘a gap, a hiatus’: a service for which no item asks a price at all. Here the item was in fact provided for, only not unambiguously described. That the contracting authority itself called it an omission in its award report was indicative but not decisive — the notion is a legal one, a matter of interpretation and not of appraisal. Wycor had moreover not listed its remarks under the heading ‘omissions’ itself. The request for clarification stayed within the limits of article 99: it nowhere alluded to the confusion between mobile walls and folding walls and was therefore not a leading question. The second plea, concerning nine items for the insulation of water and rainwater pipes (article 22.15.01, items 742, 743, 744, 862, 863, 864, 982, 983 and 984) for which Juri quoted 0.01 euro each time, also failed: nv Van Britsom had put 0.01 euro there too, the total price of the sanitary chapter was of the same order for all bidders, and article 98, § 3, only requires a prior justification where a tender is rejected for abnormal prices. The points Wycor raised only in its final brief — and which contradicted its original case — were too late and inadmissible. The Council dismissed the action and ordered Wycor to pay the costs, set at 175 euros.
Why does this matter?
This judgment draws a sharp line that keeps blurring in practice: the difference between an omission and an ambiguity. An omission is a gap — a service not covered by any item in the bill of quantities, so that whoever does not complete it has quoted no price for it. Only then does the statutory omission formula apply, which automatically raises the other bidders’ prices. Specifications that say something different from the drawings in two places are not a gap but a lack of clarity, and that defect follows a very different route: the contracting authority may ascertain what the bidders intended. The consequence for the bidder who spots the ambiguity first is counter-intuitive and harsh. Wycor did exactly what a diligent bidder should do — it flagged the problem and transparently gave alternative prices — and saw that correctness turn against it, while the competitor who had reported nothing could get by with a letter of reply. The judgment also makes clear that the wording in the award report does not bind the authority: if it calls something an omission that legally is not one, the Council corrects that, including to the detriment of the party that had relied on the label. It further confirms that a sober, non-steering request for clarification about a unit price remains permissible in an adjudication, and that a suspicion of a tip-off must be made concrete: the fact that two of the three bidders questioned answered against their own ranking actually undermined Wycor’s case. Finally, the judgment recalls that 0.01 euro in an item is not automatically an abnormal price, certainly not where several bidders do the same and the service is visibly priced elsewhere in the chapter.
The lesson
If, as a bidder, you discover a contradiction between the specifications, the bill of quantities and the drawings, label it correctly. Do not automatically write ‘omission’ where it is an ambiguity, but ask for a correction through the question round before the tenders are opened — that is the only moment when the ambiguity can still be resolved identically for everyone. If you do give alternative prices, be aware that the authority may charge them to you without having to charge them to the others. Also check that you are invoking the right decree: for a transport company such as De Lijn the royal decree of 10 January 1996 applies, not that of 8 January 1996, and correcting a wrong legal basis in a reply brief is risky. Do not save your strongest arguments for the final brief: whatever could already have gone into the application is too late afterwards. As a contracting authority, do not lightly call something an omission in your award report, because that label steers your own recalculation — and it does not necessarily hold. If you ask for clarification, word it plainly and identically to all the bidders concerned, without any hint of the answer you expect, and document that you checked the regularity of the tenders for abnormal prices as well, even if you reject none on that ground.
Ask yourself
Are you sure that what you call an omission really is a missing item, and not a contradiction between documents that every bidder could read differently? Did you raise the ambiguity in time through the question round, rather than only flagging it in your tender? Do you realise that alternative prices you offer yourself may be charged to you and not to your competitor? Are you invoking the right royal decree for a contracting authority operating in the utilities sectors? Are all your pleas and their branches already in the application? And as an authority: is your request for clarification equally sober and equally identical for everyone, and can you show that you checked the prices for abnormality?
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 →