One missing page of the bill of quantities costs Norre-Behaegel the lowest bid — and that page carried the undertaking clause
Norre-Behaegel had the lowest bid, 348,501.34 euros, for the resurfacing of the Artanlaan in Nieuwpoort, but a page of the summary bill of quantities was missing from its tender; it defended itself with the gap-filling formula of article 112 of the Royal Decree of 8 January 1996, and the Council of State dismissed its application for a reason it had not seen coming — that very missing page carried the clause by which the bidder undertakes to perform, so its tender was substantially irregular and it had no interest in its plea.
What happened?
On 29 April 2013 the city of Nieuwpoort announced a works contract for the renewal of the Artanlaan and the construction of parking strips in the Albert Pinotweg, special specifications TD/D2012-35, to be awarded by open adjudication and estimated at 600,000 euros including VAT. Nine bids were opened on 7 June 2013. Norre-Behaegel offered the lowest price, 348,501.34 euros, followed by Wegeniswerken Verkinderen (356,985.71 euros) and Wegenbouw De Brabandere (359,359.48 euros). In the examination report of 2 September 2013, four bidders failed on qualitative selection — including Verkinderen — and Norre-Behaegel’s bid was found irregular: ‘The tender form is not complete. A page is missing containing items 1 to 6. It is therefore impossible to verify all unit prices.’ On 9 September 2013 the college of mayor and aldermen awarded the contract to De Brabandere; Norre-Behaegel was notified on 10 September and applied on 25 September for suspension under extreme urgency. Its single plea was technical and, at first sight, strong: only three relevant items (1, 3 and 4) were involved, worth 8,250 euros, and article 112 of the Royal Decree of 8 January 1996 allows the authority to remedy a missing unit price with the gap-filling formula. Relying on legal scholarship, Walloon circular no. 44-0-08-02 of 14 July 2008 and the Betasco judgment (no. 58.037 of 7 February 1996), it argued that the authority must first test three criteria — does the gap affect the ranking, do the items carry significant weight, is there manipulation or speculation — and that the city had nowhere made that assessment. The Council of State never reached that discussion. It started from a more fundamental point: a bidder must undertake unambiguously, and here the tender form and the summary bill of quantities materially formed a single whole. The first page of the bill of quantities — precisely the page that was missing — carried the clause by which the bidder undertakes ‘on its movable and immovable property’ to perform the contract in accordance with the specifications. That clause appeared nowhere else in the tender, and when Norre-Behaegel’s counsel were invited at the hearing to point to a signed undertaking, they could not. The Council further noted that the bill of quantities gave two different totals for part I: 342,190.86 euros against 330,920.48 euros. The tender thus appeared substantially irregular and had to be set aside in any event — leaving the applicant with no interest in its plea. The plea was not serious; the application was dismissed and Norre-Behaegel pays 175 euros in costs.
Why does this matter?
This judgment draws a distinction that often blurs in practice: the difference between a gap in the prices and a lack of undertaking. The gap-filling formula of article 112 is a lifeline for the former — a forgotten unit price can, under conditions, be remedied without the tender collapsing. But it is of no help where the tender does not show that the bidder undertook anything at all. And that is exactly what a missing page can cause: in these specifications the undertaking clause sat on the first page of the summary bill of quantities, not on a separate tender form. Leave out that page and you lose not six items but your entire bid. The Council adds a second, procedurally sharp lesson: an applicant whose own tender must be set aside in any event has no interest in its plea — however compelling its criticism of the authority. The substantive discussion of the three Betasco criteria therefore never arose. For contracting authorities, finally, a warning is wrapped in the victory: the city of Nieuwpoort won, but on a ground it had not itself invoked. Its own reasoning — ‘it is impossible to verify all unit prices’ — was the weaker one, precisely the one Norre-Behaegel sought to defeat with article 112.
The lesson
For bidders: before submitting, check that every page of the summary bill of quantities is included, and look specifically at where in the specifications the undertaking clause sits. In many road-works specifications it is not on a separate tender form but at the top of the bill of quantities — one missing page then erases your entire undertaking, and no gap-filling formula repairs that. Also recheck your own totals: two different totals for the same part, as here 342,190.86 against 330,920.48 euros, undermine your credibility before the real debate even begins. And realise that a lower price gets you nothing if your tender is substantially irregular: you then no longer even have an interest in challenging the award. For contracting authorities: if you set aside a tender because of a gap in the bill of quantities, do not reason merely that you ‘cannot verify the unit prices’ — that is where the bidder will deploy article 112 — but examine whether the defect touches the undertaking itself, and say so expressly in your examination report. It is a stronger foundation, and it spares you a case you would otherwise have to win on a chance discovery at the hearing.
Ask yourself
Do you know where in your specifications the undertaking clause sits — on a separate tender form or on the first page of the summary bill of quantities? Have you checked that every page of the bill of quantities is in your submitted tender, and that your part totals are internally consistent? Do you realise that the gap-filling formula of article 112 can remedy a missing price but never a missing undertaking? And as a contracting authority: do you reason your rejection of an incomplete tender on the strongest ground — the absence of an unambiguous undertaking — or merely on the impossibility of verifying prices, against which the bidder will invoke article 112?
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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 →