A misplaced decimal point makes CSC the cheapest IT supplier to the federal police: the Council accepts the correction and the brief, ‘confidentiality’-based reasoning, and dismisses Aubay’s application
In the open tender worth some EUR 31.8 million for IT staff at the federal police, the Minister of the Interior corrected a decimal error in CSC’s price for the ‘on-call service’, so that CSC (from 4,118.48 to 4,037.47) overtook Intrasoft and won the contract; contrary to the auditor’s opinion, the Council of State holds that the authority could and had to correct that clerical error after asking for an explanation, that confidentiality excused it from setting out the details in the award decision, and dismisses the extreme-urgency application of the incumbent provider Aubay.
What happened?
Aubay, a Luxembourg IT services company, had supplied specialised IT staff to the federal police since 2002. After a first retender in 2006 foundered, amid injunction proceedings and a decision not to award in March 2008, its contract was repeatedly extended by three to nine months. In 2009 the police split the contract in two. One part went to Alten Belgium after Aubay’s bid had been declared irregular for abnormally low prices. The other went to C.S.C. on 26 April 2010, although Aubay bid EUR 45,207,434.16 excl. VAT and C.S.C. EUR 49,334,102.68: C.S.C. had scored better on a ‘proof of concept’ organised after the bids were opened. The Council of State suspended that award on 25 May 2010 (judgment no. 204.259) on the ground that the specification and the comparison method were unlawful; the police withdrew its decision and extended Aubay’s contract once more. On 1 October 2010 specification no. DGS/DSA 2011 R3 121 followed, published in the Belgian procurement bulletin and the EU Official Journal: a multi-year open contract from 1 April 2011 to 31 March 2016 for project managers, analysts, analyst-programmers and programmers, for both the federal and the local police, awarded by open tender. The lowest regular price would win. That price was calculated by multiplying the hourly rates per (sub)item by the estimated quantities, with the hourly rate made up 80% of the base price, the rest of surcharges for evening, Saturday and Sunday work, and 2% of the ‘service de garde’ (on-call service). Each bidder had to have at least 150 staff with the required profiles. At the opening on 22 November 2010 there were five bids (total inventory amount): Intrasoft International 4,081.60, C.S.C. 4,118.48, Aubay 4,371.06, Sogeti Belgium 4,981.96 and Alten Belgium 5,081.79. After correction, this became C.S.C. 4,037.47, Intrasoft 4,081.27 and Aubay 4,371.15. On 4 February 2011 the Minister of the Interior awarded the contract, estimated at EUR 31,771,398.72 excl. VAT, to C.S.C. The decision only showed the amounts before and after ‘rectification of clerical and arithmetical errors’; the rest of the price analysis was in an undisclosed report, because Aubay, Intrasoft and Alten had asked in their bids for their prices to be kept confidential. When Aubay asked for an explanation on 10 February 2011, the police replied on 14 February that C.S.C. refused to disclose its prices, that the error concerned the decimal point and had been corrected under Article 111 of the Royal Decree of 8 January 1996, and that the reduction was less than 2%. Aubay sought suspension under the extreme-urgency procedure on 18 February 2011; C.S.C. intervened. The Council accepted urgency: Aubay had acted within the fifteen-day period of Article 65/23(3). The first plea — that the subject matter of the contract was too broad and vague and overlapped with an existing C.S.C. contract — was not serious: this is a schedule-of-rates contract within the meaning of Article 86 of the Royal Decree, with defined profiles and estimated quantities, allowing the authority to adapt its orders to the changing needs of the police services. Under the second plea Aubay calculated that the correction of 81.01 on the average hourly rate, over five years and all profiles, reduced C.S.C.’s price by EUR 668,048.46, that such a ‘gross’ error should rather have led to irregularity, and that the correction revealed partiality. The State argued that Aubay, ranked third, had no interest. Paul Lewalle, State Councillor and acting President of the VIth Chamber, rejected that objection: every unsuccessful bidder may, under Article 65/8(1)(3°), demand a reasoned decision enabling it to understand why C.S.C.’s bid came out lowest. He also found that the correction was ‘significant’: without it Intrasoft would have been lowest, so the correction determined the award to C.S.C. Yet the plea was not serious. According to the confidential report, the authority had noticed that C.S.C.’s on-call price was wholly out of line with its other prices and with those of competitors, and that moving the decimal point was enough to make it coherent. It asked C.S.C. for an explanation, and C.S.C. replied that it was a clerical mistake. Article 111 allows the authority to establish the bidder’s real intention ‘by all means’, and having found a clerical error it had to correct it; there was no sign of partiality. The brief reasoning was prima facie acceptable, because the authority had to preserve the confidentiality that Aubay itself, Intrasoft and Alten had requested ‘tempore non suspecto’. The third plea — that the authority had not checked whether everyone had 150 staff, on the basis that Alten could not staff its contract and that the police wanted to poach Aubay’s people — rested on conjecture; C.S.C. had declared 257 staff and that had been checked. The application was dismissed, C.S.C.’s intervention allowed and costs of EUR 300 charged to Aubay. Auditor Willemart had given a contrary opinion.
Why does this matter?
In a lowest-price tender a single correction can decide the winner, and here it literally did: without the moved decimal point Intrasoft would have been cheapest. The judgment makes clear that this is not in itself a problem. Article 111 gives the authority not only the power but the duty to correct a purely clerical error, even when that changes the ranking, and it may question the bidder about it. The line lies between a clerical mistake and an abnormal price: the authority must be able to show that the error was objectively recognisable (here a price at odds with the rest of the bid and the market, made coherent by moving one decimal point) and was not ‘invented’ only through the bidder’s explanation. Equally important is what the judgment says about transparency. Aubay asked for an explanation and got only half of one; the Council found brief reasoning prima facie acceptable, because the details were in a confidential report that the Council could inspect, and because Aubay itself had asked for its prices to be kept confidential. Whoever invokes confidentiality thus also accepts that competitors will see less. At the same time, the judgment recognises the interest of a third-ranked bidder in challenging the reasoning, and takes a broad view of how ‘determinate’ open call-off contracts must be. That the auditor saw it differently underlines how close to the line the case was.
The lesson
For contracting authorities: when a price stands out, first establish whether it is a clerical error or an abnormal price, and record that distinction in the report: why the price objectively deviates, why one simple correction makes it coherent, what you asked the bidder and what it replied. Then correct consistently, even if the ranking flips. If confidentiality forces you to be brief in the award decision, at least state the nature of the correction and the amount concerned, and keep a full report ready for the Council of State. For bidders: before submitting, check every hourly rate for decimal points and units, especially for small items such as an on-call service that weighs only a few percent but counts in every sub-item. Be aware too that your own request for confidentiality may later prevent you from seeing the winner’s prices. A plea based on conjecture (‘they surely don’t have enough staff’) will not succeed; bring evidence.
Ask yourself
As a contracting authority: can I show objectively why a deviating price is a clerical error and not an abnormal price? As a contracting authority: did I question the bidder in writing before correcting, and is that in the report? As a contracting authority: does my award decision show prices before and after correction, and is a fully reasoned confidential report ready? As a bidder: have I checked every unit price, including small surcharge items, for decimal points and units? As a bidder: have I weighed that my request for confidentiality also limits the transparency I might later want to invoke? As a bidder: is my criticism of a competitor’s selection based on documents, or only on conjecture?
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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 →