A comma slip from 3.06 to 30.60 euros: why the lowest bidder could not get its ‘clerical error’ corrected
Stadsbader, lowest bidder for the sewerage and paving works on the Nolfplein square in Merksem, quoted 3.06 instead of 30.60 euros/m³ for three soil-processing items and asked in its price justification to have the ‘manifest clerical error’ corrected — but the Council of State sides with the City of Antwerp: an error that only emerges from the justification and raises the price after the opening is not a manifest error the authority must rectify, and whoever admits the error confirms the abnormality of the price.
What happened?
In March 2012 the City of Antwerp launched an open tender for sewerage and paving works on Burgemeester Jozef Nolfplein in Merksem, estimated at 2,868,631.56 euros excluding VAT. Ten bids were opened on 20 April 2012. Stadsbader was lowest at 2,239,065.47 euros; De Clercq Aannemingen Bouw en Wegenwerken (DCA) followed at 2,378,116.86 euros. The price check flagged several of Stadsbader’s items: for the ‘surcharge for removal and processing of soil usable neither as soil nor as building material (code 919)’ — items 39, 48 and 254 — it had quoted 3.06 euros/m³. The city requested a price justification on 30 April 2012. Stadsbader replied that a clerical error had crept into its bid: the unit price should read 30.60 euros/m³, a classic shifted comma, and asked for correction under article 111 of the Royal Decree of 8 January 1996. After correction its price would rise by 64,685.59 euros to 2,303,751.06 euros — still the lowest. The city refused: by admitting the error, Stadsbader confirmed precisely the abnormality of the price submitted, and article 99 of the same decree prevents bidders from relying on defects, errors or gaps in their own bid. The award report added a second ground for exclusion: the health and safety plan was too generic and the flat-rate pricing of prevention measures — 1% of the contract sum — was rejected because a detailed calculation was perfectly possible. On 7 September 2012 the college awarded the contract to DCA for 2,770,256.53 euros including VAT. The Council of State rejected Stadsbader’s extreme-urgency application. Article 111 covers only arithmetical errors and manifest clerical errors, ‘errors about which hardly any discussion is possible’ — and this was not one: the justification rested on a disposal cost of 43.75 euros/m³ taken from a subcontractor’s quote of unknown date that was not attached to the bid, and the correct unit price appeared nowhere in the bill of quantities, nor could it be assembled from other prices in it. The authority therefore could not establish the bidder’s true intention with certainty from the bid itself. Worse: the clarification came after the opening, when Stadsbader could already know its competitors’ prices, and raised its own price. It then cannot be ruled out that a bidder adjusts its price in the light of the others’ — in an open tender, where price is the sole award criterion, that would seriously jeopardise equal treatment. The city stayed within the bounds of reasonableness by not correcting and by excluding the bid for abnormal unit prices; the interest in the second branch of the plea (the safety plan) thereby lapsed. Stadsbader bears the costs of 175 euros, DCA its intervention fee of 125 euros.
Why does this matter?
Anyone who fills in bills of quantities knows the nightmare of the shifted comma. This judgment draws a sharp line between when such an error can still be repaired and when it cannot. Article 111 obliges the authority to correct only where both the error and the bidder’s true intention emerge with certainty from the bid itself and from a comparison with market prices. An error that only becomes plausible through external documents — here the subcontractor’s disposal quote absent from the bid — does not clear that threshold. Timing is the second key: whoever ‘corrects’ a price after the opening does so with knowledge of the competition, and precisely that risk of price manipulation justifies the refusal, even where the corrected price looks market-conform and the bidder remains lowest. The judgment also reconciles two provisions often played off against each other: article 99 does not prevent a bidder from flagging its own mistake and requesting the application of article 111 — but the decision remains the authority’s, and its refusal is reviewed only marginally. Finally: the city had a second exclusion ground ready with the safety plan. Whoever is lawfully excluded on one ground loses interest in contesting the other.
The lesson
For bidders: the only real remedy against comma errors is prevention — check unit prices item by item before submission, especially for rarely occurring surcharge items. If you do request a correction, make sure the error is apparent from the bid itself: a price build-up contained in the bill of quantities or the attached documents makes your intention verifiable; a justification resting on documents never submitted comes too late. And realise that a price increase after the opening will almost always founder on the equality principle, even if you remain lowest. For contracting authorities: you may correct a self-reported manifest error, but you need not — give careful reasons for your choice and document why the intention was not established with certainty. And, like the City of Antwerp here, build your exclusion on more than one leg: a second independent ground deprives the applicant of its interest in the rest.
Ask yourself
Do you systematically check all unit prices for slips before submission, particularly for surcharge and exception items? Is the full price build-up of critical items — including subcontractors’ quotes — attached to your bid, so that a later error can be verified from the file itself? Do you realise that a price correction after the opening of bids almost by definition collides with equal treatment, especially where price is the sole award criterion? And as an authority: do you state expressly why you do or do not correct a reported error, and is your exclusion built on several independent grounds?
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 →