0.95 euros for a dewatering that will probably never happen and three doors counted twice: Van Cauter keeps the new Veterinary Medicine building at the University of Antwerp, with a margin of 921.81 euros
In the open call for tenders for the extension of Veterinary Medicine on Campus Drie Eiken the two lowest tenders were barely 2,000 euros apart on 1.15 million; the University of Antwerp accepted the ‘symbolic’ price of 0.95 euros Van Cauter had quoted for the groundwater dewatering of the second building because the soil survey put the water table two metres down, refused to deduct the acoustic doors DCA had counted twice, withdrew its unreasoned award of 9 June 2009 during the annulment proceedings and awarded again to Van Cauter on 22 September 2009 — and the Council of State dismissed every objection: after thorough study a tenderer may price symbolically an ancillary item that will most probably not be executed as long as it commits to executing it, the justification grounds of article 110(3) are not exhaustive, and even with the doors deducted Van Cauter remained 921.81 euros cheaper.
What happened?
On 26 January 2009 the University of Antwerp published an open call for tenders for the extension of an existing building and the construction of a research centre with offices for the Veterinary Medicine department on Campus Drie Eiken (specification no. 08 082). At the opening on 2 March 2009 three tenders were on the table: DCA at 1,144,238.25 euros, Van Cauter at 1,146,207.50 euros and Strabag Belgium at 1,272,133.44 euros. The price review by the designer, SVR-Architects, revealed two issues. For the second building Van Cauter had quoted 0.95 euros each for the installation of the groundwater dewatering and for the operating cost per month started, and 403.75 euros apiece for the item ‘acoustic partition walls (1.86 x 2.44 m with door, door leaf 93 cm)’; Strabag had quoted 583.27 euros for the same walls. Both justified themselves: in their reading the acoustic door leaves were already covered by door item 43.31.3, so the wall item covered only the wall, and Van Cauter explained that the soil survey attached to the specification placed the water table two metres below ground level while the frost edge would be excavated to at most 80 centimetres, so that in its view no dewatering was needed and it had quoted a symbolic price. Only afterwards did the university ask DCA for an explanation: it had priced the same walls at 4,862.46 euros apiece, door included. DCA replied on 3 April 2009 that the doors had been quoted twice and could therefore be deducted once. The tender report of 22 April 2009 accepted Van Cauter’s justification — the dewatering items were of minor importance, not decisive for the ranking, and the estimated quantities would probably not be exceeded — but kept DCA’s unit price of 4,862.46 euros: changing prices after the opening is unacceptable and errors of interpretation cannot be corrected. Ranking after arithmetical check: Van Cauter 1,146,225.32 euros, DCA 1,150,013.48 euros, Strabag 1,276,070.57 euros. The university’s purchasing department saw it differently on 20 May 2009: DCA’s intention was unambiguous, this was a clerical error, and the double count of 2,605.77 euros could be struck — bringing DCA to 1,147,407.71 euros, still 1,182.39 euros above Van Cauter. On 9 June 2009 the executive board awarded to Van Cauter, in minutes stating only the decision and the amount, without a single reason and without reference to either report. DCA lodged an action for annulment on 31 July 2009. The purchasing department then advised, on 2 September 2009, to withdraw the decision: the minutes did not show which reasons the board had relied on, all the more problematic because the two reports contradicted each other. On 22 September 2009 the executive board authorised the rector to decide ‘on the fate of the award decision of 9 June 2009’, and the same day the rector withdrew that decision and awarded again to Van Cauter, this time with extensive reasons. He adopted the findings of SVR-Architects, did not follow the purchasing department on the doors — article 96 of the Royal Decree of 8 January 1996 does not allow a tenderer to rely on errors or omissions in the bill of quantities after the opening, and the two other tenderers had read the specification correctly — and expressly addressed the dewatering prices: the items were so minor that exclusion for abnormal prices would be manifestly disproportionate and contrary to the purpose of article 110(3), and in the light of the justification the price was not abnormal, all the more so because building 2 sits higher than building 1, the dewatering for building 1 would already lower the water table and the equipment would be on site anyway. DCA lodged a second action for annulment on 23 November 2009, against the withdrawal and the new award. The Council of State joined the two cases. It first dismissed the third plea, against the withdrawal. The rector had been validly authorised — the mandate stated who had deliberated, was not signed by the rector himself, and ‘deciding on the fate’ of an award naturally includes making a new award. And DCA had no interest in objecting that the withdrawal was not based on a plea from its own application: it had itself sought the disappearance of the decision of 9 June, and the Council could not see what interest it might have in the revival of a wholly unreasoned award to a competitor. That DCA trailed by ‘only’ 1,182.39 euros under the first decision and by 3,788.16 euros under the second was a false premise. With that, the first action had also become inadmissible, although the Council placed its costs on the university. The first plea — that Van Cauter’s tender was substantially irregular because it ‘would not execute’ the dewatering and thus departed from the technical clauses — lacked a factual basis: Van Cauter had nowhere said it would not execute the items; it had inferred from the contract documents that it could execute them at a symbolic price because the water table naturally lies below the working level, and should dewatering prove necessary after all, it would have to carry it out at the quoted price. It had not altered the estimated quantities. Every tenderer must, after thorough study, submit the regular tender most advantageous to it; the two others had the same documents and could have reached the same conclusion. That the specification contained two dewatering items did not prevent a tenderer from concluding that these purely ancillary works, which are not an essential part of the contract, will most probably not be executed and from quoting a symbolic price for them. In the second plea the Council, referring to the authority’s broad discretion on abnormal prices, held that the rector had decided with reasons and within the bounds of reasonableness to accept the justification; the justification grounds of article 110(3) are not exhaustive, and the architect’s remark about the effect on the ranking was a superfluous reason. The first branch, on the doors counted twice, was thereby without interest: the gap was 3,788.16 euros, the doors were worth 2,866.35 euros by DCA’s own account, and even then Van Cauter remained 921.81 euros cheaper. The actions were dismissed; each party bore 175 euros in costs for one of the two cases.
Why does this matter?
This judgment lays down a principle contractors like to quote and authorities sometimes forget: an item in the bill of quantities is not an order to pay, but a commitment to execute if needed. A tenderer who, after thoroughly studying the drawings and the soil survey, finds that an ancillary item — here the dewatering of the second building — will in all likelihood not have to be executed may quote a symbolic price for it, provided it leaves the quantities untouched and commits to executing the works at that price should reality prove otherwise. The risk then lies entirely with the tenderer, and precisely for that reason such a price does not distort competition: the competitors had the same documents and the same option. The Council adds a second confirmation: the list of justification grounds in article 110(3) of the 1996 Royal Decree (today article 36 of the 2017 Royal Decree on award) is not exhaustive. A technical reading of the site conditions suffices if the authority accepts it with reasons. Opposite this stands the mirror-image rule on mistakes. DCA had priced the acoustic doors twice because the item title said ‘with door’; the university’s own purchasing department considered that a manifest clerical error that could be struck, the architect and ultimately the rector did not. The Council did not need to settle the point, because the difference was insufficient in any event — but the lesson remains that an error of interpretation that only emerges from the price justification is a shaky basis for a correction after the opening. Finally, the judgment is a manual for withdrawing a poorly reasoned award while annulment proceedings are pending. The university did it properly: a valid delegation to the rector, an express withdrawal for the formal lack of reasons, and a new decision that names and resolves the conflicting internal opinions. The applicant who objected because the first, unreasoned decision left it a smaller gap was told it has no interest in reviving what it had itself sought to annul. Whoever asks for an award to be annulled cannot later complain that it disappears.
The lesson
If you are a tenderer and see in the contract documents that an ancillary item is probably superfluous, you may price it symbolically — but do so deliberately: leave the estimated quantities alone, write nowhere that you will not execute the item, and bear in mind that you will have to deliver the works at that symbolic price if the soil or the water table disappoints you. Underpin your price justification technically, with reference to the soil survey and the site conditions; the statutory list of justification grounds is not exhaustive. Conversely, read every item title against the rest of the bill of quantities and the door schedule before pricing: a double count you discover only after the opening will not necessarily be corrected, and whether it is a ‘manifest clerical error’ is decided not by you but by the authority. Know also that a plea which, even if well founded, does not reverse the ranking is inadmissible for lack of interest: before litigating, calculate whether your grievances together bridge the gap. If you are a contracting authority, state the reasons for your award in the decision itself or by express reference to a report; minutes containing only a name and an amount are a ground for annulment. If you notice the defect during the annulment proceedings, withdraw the decision with a valid delegation and a new, fully reasoned decision that expressly resolves conflicting internal opinions — and dare to say in it that exclusion for a symbolic price on a negligible item would be disproportionate.
Ask yourself
For every item you price symbolically, have you checked that you do not alter the estimated quantities and that your tender nowhere suggests you will not execute the works? Can you justify that price technically on the basis of the contract documents and the site conditions? Have you set every item title containing ‘with door’, ‘including’ or ‘inclusive of’ against the other items to rule out double counts before the opening? Before lodging an action, have you calculated whether your grievances together bridge the price gap with the winner? And as a contracting authority: are the reasons for your award in the decision itself, and do you expressly resolve conflicting opinions from your designer and your purchasing department? Is the delegation to whoever withdraws and re-awards valid and documented?
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 →