Clarification is not a second chance: Aclagro fails to suspend the award of the mercury clean-up in Lokeren
Aclagro, the second-ranked bidder, sought the suspension under extreme urgency of OVAM’s decision to award the ex officio soil-remediation works at the former Colruyt site in Lokeren to Aertssen for 1,167,837.47 euros, but the Council of State held that none of the three pleas — defective motivation of the selection, unlawful regularisation of the winning bid and a flawed price review — was prima facie serious, and rejected the action.
What happened?
OVAM launched a public works contract for the ex officio soil-remediation works ‘Lokeren – Molenbergplein (former Colruyt site)’, a mercury-contaminated site, by open tender (special specifications BN130522, published on 8 October 2013). At the opening of bids on 19 November 2013, eleven offers were submitted. Aertssen was lowest at 1,413,083.34 euros (VAT included), Aclagro second at 1,450,216.46 euros. During the review, OVAM asked Aertssen and Hye for clarification of their references regarding comparable (mercury-related) remediations; Hye declined to answer and was not selected, while Aertssen explained and was selected. After a price justification on several items (including the water-treatment installation, item 7), the award report of 6 March 2014 accepted Aertssen’s offer. On 11 March 2014 OVAM awarded the contract to Aertssen, but that decision stated the amount incorrectly (1,413,083.34 euros was booked as ‘excl. VAT’ instead of ‘incl. VAT’); by the contested decision of 17 March 2014 OVAM withdrew the first award and awarded again to Aertssen, now for 1,167,837.47 euros (excl. VAT). Aclagro raised three pleas. First, the selection of Aertssen was said to be inadequately motivated because it was not explained why the clarification initially requested sufficed; the Council held, prima facie, that OVAM had nowhere found the references deficient but had merely sought clarification — which article 59 of the Royal Decree of 15 July 2011 expressly allows — and that the motivation enabled Aclagro to judge whether a challenge was worthwhile. Second, Aertssen was allegedly allowed to supplement its bid unlawfully (site-layout plan, calculation note for item 7); the Council found that those documents were not prescribed on pain of nullity, that the specifications themselves provided that the site layout would only be ‘negotiated’ and ‘fixed’ after conclusion, and that it was Aclagro itself that had had to supply a missing technical sheet, so that it had no interest on that point. Third, the price review was said to be deficient; the Council noted that the threshold of article 99, § 2 (15 % below the average) had not been reached — the reference to it was a material error — and that the contracting authority enjoys broad discretion to accept a price justification. None of the pleas was serious. The Council rejected the application for suspension and ordered Aclagro to pay 200 euros in roll fees and a procedural indemnity of 700 euros to OVAM; Aertssen bore the 150-euro intervention fee.
Why does this matter?
The judgment draws a sharp line between clarifying a bid, which is allowed, and altering it, which is forbidden. Article 96, § 4 of the Royal Decree of 15 July 2011 permits the authority to ask a bidder to clarify or supplement the scope of its offer, provided the offer is not thereby changed and equal treatment is not compromised. The Council makes clear that a mere request for clarification is not yet a finding of a shortcoming, and that the duty to state reasons on selection does not go so far as to require the authority to spell out, for every document and every criterion, why a candidacy is not rejected. Equally useful is the distinction between documents that must be enclosed on pain of nullity and those that need not: only departures from essential tender requirements inevitably lead to exclusion, and whether a requirement is essential is assessed in concreto, with the authority as the first to judge. Finally, the judgment confirms the authority’s broad discretion in the price review: the Council does not substitute itself for the administration but checks whether the reasons are duly proven and do not remain vague. For anyone challenging an award the message is sober: a losing bidder must show that its own position would improve, not merely that the winner made mistakes.
The lesson
If you are a bidder and are asked for clarification, treat it as a serious matter: explain concretely and with support, for you may only clarify what was already in your bid — you may not supplement or change it. If you later challenge the award to a competitor on the ground of ‘unlawful regularisation’, first check whether the documents concerned were prescribed on pain of nullity and whether you are not in the same boat yourself: if you needed the same supplement, you lack interest. A request to the winner for clarification is not in itself proof that its bid fell short. If you are the contracting authority, state clearly what you are seeking clarification on and why you accept the explanation given, and keep the line between clarifying and altering sharp; in a price justification you have broad appreciation, but your reasons must be proven and concrete, not general.
Ask yourself
Do you know that an authority may ask you to clarify or supplement your bid, but that you may not alter it in doing so — and that the difference between the two is often decisive? Have you checked whether the documents you stumble over were actually prescribed on pain of nullity for the winner, and whether you needed the same supplement yourself (so that your interest falls away)? Do you realise that a mere request for clarification is not a finding that a bid fell short? And as an authority: do you motivate concretely what you seek clarification on and why you accept the price justification, without remaining at generalities?
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 →