Molenbeek excludes the cheapest bidder over a ‘non-conforming bill of quantities’ and immediately signs with the runner-up: the Council of State suspends the award of the library renovation
The municipality of Sint-Jans-Molenbeek declared Socatra’s tender for the renovation of its French-language library — 172,000 euros cheaper than the next — substantially irregular because the summary bill of quantities did not follow the model in the specifications, awarded the contract to Gillion Construct and placed a ‘firm order’ the same day without waiting out the standstill period; the Council of State held that no provision turns such a formal deviation into a substantial irregularity — the municipality had itself compared the tenders in a first report — and suspended the award under extreme urgency.
What happened?
The municipality of Sint-Jans-Molenbeek wanted to renovate and extend its French-language municipal library on rue des Béguines. A first open tendering in 2009 was abandoned on 30 December 2009 because it was uncertain whether the French Community would subsidise the project. During that first procedure the design office Baneton-Garrino Architectes had emailed all bidders, including Socatra, on 19 May and 3 June 2009 with corrections to the summary bill of quantities — among others 215 m² of additional suspended ceiling and latex paint for the third-floor reading room. On 22 March 2011 the municipality published a second notice. Four contractors tendered: Socatra was by far the cheapest at 2,276,104.99 euros excluding VAT, followed by Gillion Construct (2,448,203.41 euros), In Advance (2,456,965.99 euros) and Technotra (2,499,709.50 euros). A first analysis report of 15 July 2011 concluded that Socatra’s tender, after correction of a few quantities treated as mere clerical errors, was the most advantageous; the college awarded it the contract on 13 July 2011. The Brussels supervisory authority, however, suspended that decision by ministerial decree of 29 August 2011: Socatra had used a bill of quantities that did not match the model attached to the specifications, with a number of items ‘as variants’ and quantities different from those requested, and the college had corrected those quantities without Socatra having justified them. For good measure the supervisory authority pointed to the low amount of Socatra’s safety bill: 9,375 euros against 35,340, 52,075 and 57,806.37 euros for the competitors. Rather than justifying its decision, the college withdrew it on 7 September 2011, citing only a clerical error in the analysis report. A new report of 30 September 2011 this time declared Socatra’s tender formally irregular, and on 5 October 2011 the college awarded the contract to Gillion Construct for 2,448,262.56 euros excluding VAT. Socatra heard nothing for months. On 16 November 2011 the municipality still wrote that ‘the complete file is still under study’. Only by letter of 28 December 2011, received on 3 January 2012, was Socatra told that its tender had not been retained — without reasons. That same 28 December the municipality wrote to Gillion Construct that it was placing ‘a firm order’ and requested a guarantee of 122,420 euros. Socatra’s counsel repeatedly asked, on 3, 5, 6, 9 and 10 January 2012, for the reasoned decision and the contract documents; on 6 January he received by fax only an extract from the analysis report and on 9 January the reply that he should send ‘an official letter’ for the legal department. On 17 January 2012 Socatra applied for suspension under extreme urgency; Gillion Construct intervened. The municipality raised three objections. The application documents were said to be incomplete because the articles of association were not attached in their published version — the Council found a consolidation certified by notary Gilberte Raucq prima facie sufficient. The contested decision was said to cause no harm because the municipality was merely implementing the supervisory authority’s decision — the Council pointed out that the supervisory authority had suspended, not annulled, and that the municipality itself had chosen to withdraw its first award rather than justify it, to have a new report drawn up and to award to a competitor. And Socatra was said to have lost its interest because the contract with Gillion had already been concluded — here the Council turned the argument around: the ‘firm order’ of 28 December 2011 showed that the municipality had not respected the standstill period of article 65/11 of the Act of 24 December 1993 (at 2,448,262.56 euros the contract lay just above the 2,422,500-euro threshold for that obligation), so that under article 65/13 a suspension of the award automatically suspends the performance of the contract as well. On the merits, Councillor of State David De Roy found that Socatra had indeed used a different bill-of-quantities form, included variants not provided for in the specifications and altered quantities. But no regulatory or specification provision makes that in itself a substantial irregularity requiring exclusion. The claim that the formal deviation made price comparison impossible was contradicted by the municipality itself: in its first analysis report it had corrected the quantities and ranked all tenders, Socatra’s included. The plea based on article 15 of the 1993 Act was serious. The balance of interests did not favour the municipality either. It feared the lapse of its planning permit, which had to be implemented by 8 January 2012 at the latest, and the loss of 894,788.51 euros in French Community subsidies. The Council reasoned sharply: if the site meeting and site set-up under way since late December sufficed to avoid the lapse, that risk had already passed; if they did not, the lapse had occurred on 8 January anyway, regardless of any suspension. As to the loss of subsidies, the municipality produced no concrete element whatsoever. The Council suspended the decision of 5 October 2011, ordered immediate enforcement and notification by fax, and reserved the costs.
Why does this matter?
This 2012 judgment touches on three questions that arise daily under current legislation too. First: when is a deviation from the prescribed bill-of-quantities model substantial? Not automatically. The Council requires the contracting authority to show that the deviation actually compromises the comparison of tenders or the performance of the contract, and it uses the authority’s own conduct as evidence: whoever first compares and ranks the tenders itself can hardly claim afterwards that they are incomparable. Second: a suspension by the supervisory authority is not an annulment. The contracting authority retains the choice to justify or withdraw its decision, and that choice is its own, challengeable decision — the municipality could not hide behind ‘we merely implemented the supervisory authority’. Third, and most practically: concluding a contract before the standstill period has expired does not shield the authority from a suspension; quite the opposite. Under article 65/13 of the 1993 Act — today article 18 of the Remedies Act of 17 June 2013 — suspension of the award then automatically entails suspension of performance. The ‘firm order’ the municipality placed on 28 December 2011 was meant as a fait accompli and became the proof of its own mistake. Finally, the judgment shows how a contracting authority can trap itself in the balance of interests: whoever claims at once that the works have already started and that a suspension would cause the permit to lapse loses on both fronts.
The lesson
If, as a bidder, you use your own bill-of-quantities form or adjust quantities, do so expressly and with reasons: include the formula prescribed by the specifications in the header, justify every altered quantity as article 96 of the 1996 Royal Decree (today article 79 of the 2017 Royal Decree on award) requires, and do not carry over terms like ‘variant’ from a previous specification — Socatra won here, but would have spared itself much risk by using the new bill. After a rejection, immediately request in writing the reasoned decision and the full analysis report; the time limit for appeal is running, and an authority that gives you the runaround only strengthens your case. As a contracting authority: do not exclude a tender as substantially irregular merely because it formally deviates from the model, certainly not after you have already compared and ranked it; explain why the deviation concretely makes comparison or performance impossible. Send the reasoned decision to all bidders on the same day and strictly respect the standstill period before placing an order or concluding the contract — otherwise the Council suspends not only your award but, automatically, the performance of the contract as well. And when the supervisory authority suspends: realise that justifying or withdrawing is your own choice, for which you remain responsible.
Ask yourself
Did you complete the summary bill of quantities on the model of the current specifications, and if not, did you include the prescribed statement in the header and justify every altered quantity? Does your bill contain words like ‘variant’ carried over from a previous version that the authority could misread? Do you know that after a rejection you are entitled to the reasoned decision and must demand it in writing to protect your time limit for appeal? Do you realise that a contract concluded during the standstill period offers you no protection as an authority, but extends the suspension automatically to performance? Can you, as an authority, explain why a formal deviation makes tender comparison impossible if you compared them yourself earlier? And when the supervisory authority suspends, did you consciously choose between justifying and withdrawing, knowing that choice is a challengeable decision?
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 →