‘Included in item 11.1’: with one cross-reference Tevean made its lowest bid for the electrical works at the Lebbeke Cultuurerf incomparable
Tevean NV was, at 220,121.28 euros, the cheapest of four bidders for the electrical installation of the Cultuurerf in Lebbeke, but because it described the VVT wiring for the push-buttons required by the specifications — a lump-sum item — as ‘included’ in a UTP-cabling item priced on estimated quantities, the municipality was entitled to reject its bid as substantially irregular, and Tevean’s undeveloped plea could not overturn that.
What happened?
The municipality of Lebbeke launched a public tender for the redevelopment of the ‘Stationsstraat’ inner area, Cultuurerf phase 2 — halls and facilities. Lot 3 covered the electrical installation, split into lot 3.1 (function hall) and lot 3.2 (youth premises). At the opening on 13 January 2006 four bids were on the table, VAT included: De Proft BVBA (292,486.10 euros), Vander Putten BVBA (242,247.82 euros), Tevean NV (220,121.28 euros) and Van Cauter BVBA (243,409.55 euros). Tevean, from Zelzate, was thus more than 22,000 euros cheaper than the runner-up. The tender report of 11 April 2006, however, declared its bid irregular for three reasons. For items 2.2.4 and 2.2.5 (XVB cable of 2.5 and 1.5 mm², lump sum) Tevean had written ‘included in item 2.2.6’ and ‘included in item 2.2.7’ (pre-wired VOB conduit), from which the report inferred that it would not use XVB cable, although the single-line diagrams required it. For item 2.2.8 — VVT 2x2x0.8 mm², the wiring for the push-buttons throughout the building, also a lump sum — Tevean had written ‘included in item 11.1’, the item ‘UTP cabling cat 5e min. 150 MHz’ which was priced on estimated quantities. According to the report, the push-button wiring would therefore have to be measured after the works and charged extra, so that Tevean’s price was not comparable with the others. On 4 May 2006 the board of mayor and aldermen awarded the contract to Elektrotechnische Ondernemingen Vander Putten, referring to that report. Tevean brought an action for annulment on 26 June 2006. The judgment came almost five years later. The municipality first argued that the action was out of time, since Tevean had allegedly been informed by letter of 25 April 2006. Tevean replied that it only received that letter on 28 April. Because the municipality did not substantiate its dispatch date and did not even file a final brief, it was not shown that the action was late. On the merits, the Council first examined the second plea, directed at the ground concerning item 2.2.8. Tevean argued that the municipality should have asked it for clarification and that the deviation did not make comparison of the bids impossible, but it did not develop this ‘in any way’ in its application. The Council held that Tevean had given no indication in its bid that it meant anything other than not laying VVT cable; it had moreover confirmed this itself in its reply brief. It was therefore not unreasonable to infer that it would lay UTP cable from item 11.1 instead, and the municipality did not have to ask for an explanation. The new explanation in the reply brief — that the VVT wiring was superfluous — came too late and showed at most that another reading was conceivable, not that the municipality’s reading was devoid of all reasonableness. Combined with the fact that item 2.2.8 was a lump sum and item 11.1 was on estimated quantities, the municipality could rightly conclude that the bid not only deviated from the specifications but also made a correct and objective comparison of the bids impossible. Under article 98(2) of the Royal Decree of 10 January 1996 — the provision the municipality had relied on — it was entitled to regard the bid as substantially irregular. The second plea was unfounded. Tevean therefore no longer had an interest in the first plea about the XVB cables, which was directed at a superfluous ground. The action was dismissed and Tevean bore the costs of 175 euros.
Why does this matter?
The judgment makes two things concrete. The first is how dangerous a seemingly harmless note such as ‘included in item X’ can be in a bill of quantities. A lump-sum item is a fixed price; an item on estimated quantities is settled afterwards. Whoever folds one into the other shifts price risk from the bidder to the authority and makes its total price incomparable with that of competitors who priced the item as a lump sum. That is exactly what the municipality found, and the Council did not consider it unreasonable. Tevean thus lost a contract for which it was more than 22,000 euros cheaper. The second point is procedural: a plea that merely asserts that the deviation did ‘not’ make comparison impossible, without developing it, stands no chance. The Council’s review is marginal, and the applicant must show that the authority’s reading is devoid of all reasonableness. A better explanation that appears only in the reply brief is too late. The judgment also offers a useful lesson on the duty to seek clarification: there is none where the bid itself contains no indication that the bidder meant anything other than what it says. And it reminds authorities that whoever argues that an action is out of time must be able to prove the dispatch and receipt dates.
The lesson
For bidders: never write ‘included in item X’ in a bill of quantities without checking whether both items are of the same nature. If a lump-sum item is merged with an item on estimated quantities, your bid becomes incomparable, which can make it substantially irregular. If you deliberately depart from a technical requirement because you consider it superfluous, say so expressly and justify it in the bid itself, or raise the question during the tender period. An explanation after the fact will not save you. And develop your pleas fully in the application: whoever merely states that comparison was ‘not impossible’, without showing why, loses. For contracting authorities: give reasons for irregularity as Lebbeke did, concretely per item and with the consequence for comparability, and if possible base the decision on several independent grounds. If you argue that an action is out of time, be able to substantiate the dates of dispatch and receipt.
Ask yourself
Have you used cross-references such as ‘included in item X’ in your bill of quantities, and have you checked whether both items are lump sums or both on estimated quantities? Are you supplying what the specifications and attached diagrams require, or are you silently replacing it with something else? If you consider a requirement superfluous, have you justified that in the bid itself or asked about it during the tender period? Are your pleas fully developed in the application, so that you do not have to rely on the reply brief? And as an authority: do you explain per item why a deviation makes comparison impossible, and can you prove when your notification was sent and received?
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 →