The bid that ended up in the wrong room: Affligem opened it after the session with four witnesses present — and saw the Driesplein award annulled for it
The municipality of Affligem accepted Audebo's bid for the redevelopment of the Driesplein even though, through a misunderstanding, it only reached the chairman after the opening session had closed and was opened outside any public session — admittedly before the eyes of an alderman, the secretary, a department head and Grontmij's project leader — but the Council of State held that opening bids in public session is an essential formality safeguarding the equality of bidders, and annulled the award almost four years later, even though the works had long been carried out.
What happened?
In the autumn of 2008 the municipality of Affligem issued an open call for tenders for the redevelopment of the Driesplein with the construction of a separated sewer system. At the opening session of 21 November 2008, at 10 a.m. in the town hall, five bids were opened: De Moor (782,560.73 euros), De Jonge (843,707.13 euros), Marcel Nys (768,145.04 euros), Pevenage & Zoon (681,017.52 euros, with a 2 per cent discount on all prices) and De Winne (707,424.33 euros). Below a line on the minutes stood a sixth name: ‘Due to circumstances delivered on time to the wrong room — Audebo, 745,559.50 euros’. Audebo's bid had been handed in at the town hall on time, but at the wrong department, and only reached the chairman after the session had closed. The municipality opened it immediately afterwards, in the presence of alderman for public works Paul Geeraerts, secretary Juliaan Van Ginderdeuren, department head Koenraad Surdiacourt and project leader Barbara Verhoeven of engineering firm Grontmij, and took it into consideration anyway: according to the tender report there was ‘no chance whatsoever of manipulation’ and the approach rested on a precedent in the city of Geel, where the Council of State had accepted a bid that arrived on time but by a detour. After arithmetical verification Audebo was ranked lowest regular bidder, ahead of Pevenage & Zoon, and on 30 December 2008 the college awarded the contract to Audebo. Pevenage & Zoon went to the Council of State. The municipality's objections fell first: that the petition mistakenly cited ‘6 January 2009’ as the date — the date of certification — was a material error that had prevented no one from identifying the object of the action, and that the works had meanwhile been executed did not deprive Pevenage & Zoon of its interest: a bidder passed over in an award retains a qualified moral interest in the annulment. On the merits the Council shifted the debate: regardless of whether Audebo's bid was submitted on time, it was established that it had not been opened during a public opening session. That requirement of article 106, first paragraph of the Royal Decree of 8 January 1996 is, according to the Council, an essential formality intimately bound up with the equality of bidders, because it guarantees them information about their competitors — the Council citing the Court of Justice's judgment of 24 January 1995 in Commission v Netherlands. That Pevenage & Zoon was itself not present at the session took nothing away from the breach. The violation vitiated the entire further course of the award procedure: the award to Audebo was annulled, with costs of 175 euros for the municipality and 125 euros of intervention costs for Audebo itself.
Why does this matter?
The judgment makes clear that good faith and witnesses are no substitute for publicity. The municipality had covered itself, after all: four witnesses at the opening, a reasoned note in the tender report and even case law on a comparable incident in Geel. But that precedent concerned the timeliness of an internally strayed bid; here the municipality stumbled over something else — the opening outside any public session. The public opening is not a formality for form's sake: it is the moment when every bidder sees with his own eyes who is competing and at what price, and precisely that verifiability makes manipulation pointless. A closed opening with the authority's own witnesses offers no such guarantee, however honest those present may be. The sanction matters too: the breach vitiates the entire further procedure, without the applicant having to prove concrete prejudice. And the judgment confirms that execution of the works does not render an annulment action pointless: the passed-over bidder's qualified moral interest suffices — a principle that keeps the road to damages open.
The lesson
For authorities: if a bid fails to reach the chairman in time through an internal misunderstanding, do not open it afterwards behind closed doors. The only safe route runs through the rules themselves — a bid that cannot be opened at the public session in accordance with the requirements is not taken into consideration, however low the price and however many witnesses you gather. Organise your reception so bids can arrive at only one place, and document the chain of custody. For bidders: hand in your bid where the specifications say and ask for a receipt with time and department. If you find that a competitor was added outside the session, know that the breach of the public opening suffices in itself for annulment — you need not prove manipulation, and even completed works do not bar your action.
Ask yourself
As an authority, do you know what to do when, just after the opening session closes, another bid surfaces that was handed in to your departments on time — and do you realise that opening it with witnesses outside the session makes the procedure voidable? Can a bid enter your organisation at only one point, with a watertight trail from receipt to opening? As a bidder, do you check the opening minutes for names or amounts added after the session? And do you know that even after the contract has been performed you still have an interest in the annulment of the award, as a stepping stone to damages?
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 →