UDN suspension: soil investigation framework agreement suspended because authority failed to provide inventory for unit price contract — tenderers may not compile their own price list
The Council of State suspends the award of the framework agreement for soil investigations in the Ghent port area because North Sea Port Flanders, although designating the contract as a unit price contract, failed to include an inventory in the tender documents and left it to the tenderers to compile their own price list — resulting in the absence of a uniform comparison basis for unit prices and undermining the lawful and transparent evaluation of offers.
What happened?
North Sea Port Flanders issued a non-open procedure (special sectors) for a framework agreement for soil investigations in the Ghent port area. The tender designated the contract as a 'unit price contract' but included no inventory — tenderers had to compile their own price list and calculate total prices for two scenarios (parcel not a risk parcel vs. mandatory soil investigation). Seven candidates were selected but only two submitted offers. After a first award was withdrawn, the contract was again awarded to S.B. TEC sought UDN suspension arguing the tender documents were unlawful: a unit price contract requires an inventory providing a uniform comparison basis. The authority argued the two scenarios provided comparability. The Council found the plea serious: a unit price contract requires an inventory as reference framework. The two price lists showed considerable differences in how they fractioned the assignment into posts. Total prices for scenarios don't solve this if underlying cost structures differ. The framework nature of the contract makes the need for an inventory greater, not lesser. Award suspended.
Why does this matter?
This ruling establishes that for unit price contracts, the authority must provide an inventory — leaving tenderers to compile their own price lists is impermissible as it eliminates the uniform comparison basis essential for lawful evaluation. Total prices for scenarios cannot compensate if underlying price structures fundamentally differ. A tenderer may challenge tender document unlawfulness against the award decision without having separately challenged the documents. Not raising objections during the procedure doesn't make the plea inadmissible.
The lesson
As authority: for unit price contracts, always include an inventory. Don't leave it to tenderers to create their own price lists. For framework agreements with uncertain scope, an inventory is even more important. As tenderer: if asked to compile your own price list for a designated unit price contract, this is a potentially serious defect you may raise against the award decision.
Ask yourself
As authority: is this designated as a unit price contract? If so, did you include an inventory? Do tenderers fill in your inventory or create their own price list? As tenderer: is there an inventory? If not, are you asked to compile your own price list?
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 →