Filling in gaps in the bill of quantities rather than rejecting the bid: the Council of State dismisses the extreme-urgency challenge to the award to Franki
Moureau challenged, under extreme urgency, the award of lot 1 of the 'Les Jolis Bois' care home to Franki (6,538,229.83 euros), but the Council of State dismissed the application: Franki had filed a complete declaration of commitment, and the CPAS's filling-in of some dozens of items — together about 2% of the contract value and 5% of the items — was no manifest error.
What happened?
The public welfare centre (CPAS) of Saint-Georges-sur-Meuse awarded, by open tender, a public works contract for the reconstruction and extension of the 'Les Jolis Bois' residential care home and the construction of five assisted-living residences with parking. The notice appeared in the Supplement to the Official Journal of the European Union of 8 March 2013 (with a corrigendum on 27 March 2013). Lot 1, the subject of the dispute, was divided into four parts: A (structural works and finishing), B (stability), C (surroundings) and D (kitchen). By decision of 10 October 2013 the CPAS awarded lot 1 to Franki, as the bidder with the lowest regular offer, for the checked amount of 6,538,229.83 euros (VAT excluded). Entreprise Générale Moureau François et ses Fils sought suspension under extreme urgency. By a first plea it argued that Franki had entered no price for any item of part D (kitchen) — the items concerned appeared blank in the designer's price overview and were highlighted in red as 'omitted' — so that, in its view, there was a substantial irregularity and a lack of commitment. The Council of State found, however, that the administrative file showed Franki had indeed filed a complete declaration of commitment covering the whole of lot 1; the first plea was serious in none of its branches. By a second plea Moureau accused the CPAS of a manifest error of assessment: the possibility under article 112, § 4, of the Royal Decree of 8 January 1996 to fill in gaps had, it argued, to be interpreted in conformity with the directive and could not apply where the gaps concerned not one isolated item but a whole part of the bill of quantities — some fifty items, it said. The Council pointed to the text of article 112, § 4: where a bidder has indicated neither a unit price nor a lump sum for any item of the summary bill of quantities, the authority may either set the bid aside as irregular or retain it by applying § 2. Depending on whether the options provided for were counted, the parties disputed whether 43 or 54 items had been filled in by the CPAS. In any event, said the Council, that number was far below the total: the contract counted 864 items, so the dispute concerned about five percent of them. The amount of the items filled in by the authority came to 116,848.83 euros, or about two percent of the contract value. In those circumstances the CPAS could not reasonably be reproached for filling in the omitted items rather than declaring the bid irregular; the second plea was not serious. The Council further declared, at this stage of the procedure, the bids filed by Franki and Moureau and the correspondence on Franki's price justification confidential. The application for suspension under extreme urgency was dismissed and the costs of 175 euros were placed on the applicant.
Why does this matter?
The judgment shows the other side of strict regularity thinking: not every gap in a bill of quantities is fatal. Article 112, § 4, expressly gives the authority a choice — reject the bid, or retain it and fill in the missing items under the correction rules. Where that choice lies, the Council of State reviews with restraint and above all on proportionality: the size of the gaps relative to the whole of the contract is decisive. A few dozen items filled in out of 864, worth some 2% of the contract value, remain well within what the authority was allowed to correct. Equally important is the finding on commitment: a bid with blank items in the bill of quantities is not necessarily a bid without commitment, if the bidder has signed a complete declaration of commitment for the whole lot. For bidders challenging an award, the lesson is that a plea of 'missing prices' must be carefully supported with figures on its scope; for authorities, that filling in gaps is a lawful but bounded power.
The lesson
If you are an authority and, in a works tender, a unit price or lump sum is missing for one or more items of the bill of quantities, article 112, § 4, of the Royal Decree of 8 January 1996 gives you a choice: set the bid aside as irregular, or retain it and fill in the gaps under the correction rules of § 2. That power is real, but bounded by proportionality — weigh the number and weight of the gaps against the whole of the contract, and document that assessment. If you are a bidder wishing to challenge an award because a competitor left items blank, support with figures how heavily those gaps weigh: a few percent of the items and of the contract value is not enough to speak of a manifest error. And do not confuse a blank item in the bill of quantities with a lack of commitment: whoever signs a complete declaration of commitment for the whole lot has committed. Finally, in an extreme-urgency action, expect a strict seriousness test: an unsupported plea will not be found serious.
Ask yourself
Is a unit price or lump sum missing for an item of the bill of quantities? Then you may choose: reject the bid, or retain and fill it in under article 112, § 4, in conjunction with § 2. How do the gaps relate to the whole of the contract — in number of items and in value? That proportionality is decisive for the review. Does a blank item in the bill of quantities mean a lack of commitment, or does a complete declaration of commitment for the whole lot cover the contract? Do you support your 'missing prices' plea with figures, or does it remain a general assertion? As an authority, do you document why you filled in the gaps rather than rejecting the bid?
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 →