A sheet-pile bank along the Muizenvaart and a gap of 1,084 euros: may the authority correct an error in the estimated quantities flagged by the lowest bidder?
De Brandt, ranked second at 1,722,087.23 euros, challenged under extreme urgency the award of a sheet-pile works contract along the Muizenvaart to Herbosch-Kiere — whose bid only reached 1,721,003.12 euros, 1,084 euros below De Brandt, after a reduction of the estimated reinforced-concrete quantities that Herbosch-Kiere itself had flagged and that Waterwegen en Zeekanaal had accepted — but the Council of State held that the authority was entitled to make that correction under articles 83 and 97 of the Royal Decree on the placement of public contracts, and rejected the application.
What happened?
The public-law company Waterwegen en Zeekanaal launched an open tendering procedure for works under specification BB 1898: a new vertical bank protection — an anchored sheet-pile wall with a reinforced-concrete capping beam and the repair of gabions — over some 1,100 m along the right bank of the Leuven-to-Dijle canal, downstream of Planckendael. The contract was published in the Bulletin of Tenders of 4 November 2013. Six contractors bid. At the opening, De Brandt appeared lowest at 1,722,087.23 euros, just ahead of Herbosch-Kiere at 1,729,136.27 euros. However, Herbosch-Kiere had attached to its bid a note in which, relying on article 83 read together with article 97 of the Royal Decree of 15 July 2011, it flagged errors in the estimated quantities of certain items and proposed a reduction of more than 25%, notably for the cast-in-place reinforced concrete filling the anchor recesses. The authority examined those proposals: it rejected the reductions for the reinforcing steel, but accepted those for the filling of the anchor recesses (0.015 m³ per recess, calculated on the number of anchors as if the concrete beam ran the full length). Herbosch-Kiere's bid thereby fell to 1,721,003.12 euros, making it the lowest regular bidder, 1,084 euros below De Brandt. On 13 December 2013 the authority awarded the contract to Herbosch-Kiere; De Brandt learned that its bid had not been chosen by fax and registered letter of 23 December 2013. De Brandt sought suspension under extreme urgency, arguing that the authority had wrongly corrected the flagged error in the beneficiary's favour: in its view this was no ‘flagrant error’, the small concrete quantities were not established, and the authority could not perform its own calculations. Sitting in interim relief, the Council of State first admitted Herbosch-Kiere's intervention and then examined only whether a serious plea was present. It found that article 97, § 2 in fact requires the authority to examine corrections proposed by a bidder and, where necessary, to correct them according to its own calculations; that the regulatory 25% threshold was met here; and that the reference to ‘flagrant errors’ in the Report to the King concerned only the raising of that threshold from 10% to 25%, not an additional condition. In its review the authority had taken the maximum concrete quantity per recess, so the quantity actually to be executed could only be lower; the uncertainty invoked by De Brandt did not undermine that reasoning on a quick, prima facie examination. The complaints of internal contradiction and inadequate reasoning, and the argument that the authority had refused a similar change in a comparable file (the ferry landing at Hamme), also failed: notification in that other file dated from 17 December 2013, after the bids were submitted on 11 December 2013. The Council held that the sole plea was not serious, rejected the application and ordered the intervening party to bear the costs of its intervention, set at 125 euros.
Why does this matter?
In an open tendering procedure the lowest regular bid wins, so the fate of a contract can turn on a few hundred euros and on how the authority handles an error in the estimated quantities flagged by a bidder. This judgment shows that articles 83 and 97 of the Royal Decree not only permit but require the authority to examine such flagged errors and, if they are correct, to rectify them according to its own calculations — even where that correction lifts the flagging bidder into first place. A runner-up who challenges the correction must therefore show more than that the quantities are small or the estimates uncertain: it must make the seriousness of its technical criticism plausible on a quick, prima facie examination, which is a high bar in an extreme-urgency procedure. Equally important is the flip side noted in the Report to the King: the bidder who proposes a reduction receives a lump-sum price for that item and thus carries the risk if it has underestimated the quantity. The ‘gain’ from the correction is also a risk. Finally, the judgment clarifies that ‘flagrant error’ introduces no extra admissibility threshold but merely explains the tightening from 10% to 25%.
The lesson
If, as a bidder, you flag an error in the estimated quantities, do it as Herbosch-Kiere did: with a supporting note attached to the bid, a deviation of at least 25%, and a calculation based on the contract documents and the annexed drawings. Realise that an accepted reduction turns that item into a lump-sum price and so loads the risk of an underestimate onto you. As the authority, examining such notices is not a favour but a duty: study them, correct where necessary according to your own calculations, start from a defensible (here: maximum) quantity, and document that reasoning in the award report. To have the correction struck down in interim relief as an aggrieved competitor, do not show that the quantities are ‘small’ or ‘uncertain’, but that the correction is manifestly wrong — and that this is apparent on a quick, prima facie reading. A purely technical dispute requiring in-depth investigation is rarely serious in an extreme-urgency procedure.
Ask yourself
Do you know that a bidder may correct an error in the estimated quantities only where the deviation is at least 25% and a supporting note is attached to the bid? Do you realise that the authority may not simply ignore such a flagged correction but must examine it and, where necessary, rectify it according to its own calculations? If you propose a reduction, have you taken account of the fact that the accepted item becomes a lump-sum price and that you carry the risk of an underestimated quantity yourself? And if, as runner-up, you challenge the correction: can you show its manifest wrongness on a mere prima facie examination, or does your criticism require precisely the kind of in-depth technical analysis that interim relief does not allow?
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 →