Your BAFO says the opposite of what you explained verbally? The BAFO prevails — and the contracting authority's silence during an earlier tender round is not approval
The Council of State rejects the suspension of the award of a framework agreement for the LON network at Antwerp Central Station, because a clause in the BAFO placing all costs except faulty maintenance on the contracting authority is incompatible with the required Full Omnium — even though the tenderer verbally stated the opposite.
What happened?
NMBS issued a framework agreement for the replacement of the LON network (Local Operating Network) at Antwerp Central Station — a Design-Build-Maintain contract for the infrastructure controlling technical installations (ventilation, fire detection, doors, lifts, escalators, lighting), with a 15-year Full Omnium maintenance contract. The contract fell under the special sectors and used a negotiated procedure with prior call for competition. After selection, two tenderers remained: Besix Unitec and Equans. The specifications required omnium maintenance, excluding vandalism: the contractor bears all risks and costs for malfunctions or damage regardless of cause. However, in its Best and Final Offer (BAFO), Besix Unitec included a clause stating that all costs for repairing malfunctions or damage 'are always borne by the contracting authority unless it can demonstrate that the cause was faulty maintenance'. NMBS declared the tender substantially irregular for three reasons: no Full Omnium maintenance, non-compliant fire resistance, and no guaranteed minimum availability. The contract was awarded to Equans. Besix Unitec sought suspension and raised two arguments. First, it argued the clause was misunderstood, referencing negotiations where it had verbally clarified on 18 September 2024 that it was offering omnium maintenance and the clause was only meant for extreme unforeseen causes like vandalism and lightning. It also argued that NMBS's silence after that clarification amounted to tacit approval. Alternatively, it should have been given the opportunity to regularise. The Council rejected the argument. The wording of the BAFO clause was clear: Besix Unitec only bore the costs of faulty maintenance, all other causes fell to the contracting authority. This was incompatible with a Full Omnium requirement. Verbal clarifications contradicting the written clause cannot alter the regularity assessment of the final offer. NMBS's silence during an earlier round was not approval — NMBS had already warned multiple times and it was Besix Unitec's responsibility to draft its BAFO carefully. As for regularisation: the specifications allowed regularisation before negotiations, but at the BAFO stage NMBS had to declare nullity. The second argument — that Equans' Build price of allegedly EUR 21.5 million was abnormally low — was factually incorrect: the actual Build price was EUR 24.9 million, only 5.7% lower than Besix Unitec's EUR 26.4 million, and total prices were very close (EUR 29.7 vs 30.2 million).
Why does this matter?
This ruling clarifies that the regularity of a tender is assessed based on the final offer itself, not on verbal clarifications that contradict the written text. The contracting authority's silence during an interim round is not approval. And at the BAFO stage, the opportunity for regularisation has been exhausted.
The lesson
As a tenderer in a negotiated procedure: ensure that the wording in your final offer exactly matches what you explained verbally and what the specifications require. The BAFO is the only binding document. A clause placing all costs on the contracting authority unless it proves faulty maintenance is not the same as Full Omnium — regardless of what you said earlier.
Ask yourself
Before submitting your BAFO: have you compared every clause against the specification requirements? Is there anything that contradicts what you explained verbally? And have you not relied on the contracting authority's silence during an earlier round as evidence that your offer was compliant?
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 →