A forgotten digit is not a free second chance: SPI should not have raised Batrageci’s asbestos price as a ‘clerical error’
The Council of State suspends, under extreme urgency, the award by the intermunicipal company SPI of a riverbank restoration project in Theux to Batrageci, because SPI allowed an excessively low unit price for removing asbestos-containing demolition waste to be corrected after the event as a clerical error — a correction that kept Batrageci 590 euros below the applicants — without any convincing evidence of what the bidder had really intended to offer.
What happened?
On 24 April 2026 the Liège intermunicipal company SPI decided to tender, by open procedure, works for the ‘reconstruction résiliente des berges du bassin de la Vesdre – Theux centre sportif’: setting back the river wall on the right bank of the Vesdre next to the sports centre in Theux. Price was the sole award criterion (specifications no. 2026-2499). Four tenders were received. During the price inquiry, SPI questioned Batrageci on 12 June 2026 about, among other things, item 10 (D9361), the ‘évacuation en filière adaptée des déchets de démolition du déversoir d’orages, y compris la conduite, contenant de l’amiante’ — the removal of asbestos-containing demolition waste from a storm overflow. On 23 June Batrageci replied that it had made a mistake when entering its unit price: ‘*55 en fin de prix unitaire au lieu de *5’. It broke down its price and later also provided its subcontractor’s quote for landfill costs, bagging, loading and transport. According to the applicants, the price thus probably went from 15 to 155 euros per tonne. SPI accepted the correction, excluded Chêne’s tender and on 30 July 2026 awarded the contract to Batrageci for 937,970.84 euros excluding VAT. After the correction, the difference with the tender of BV Tegec, NV Trageco and NV Roger Gehlen was a mere 590 euros. They applied for suspension under extreme urgency on 14 August 2026. Their application against the implicit decision not to award the contract to them was inadmissible: they did not show that SPI had no choice but to designate them. On the merits, chamber president David De Roy first set out the framework: a clerical error is a mistake that manifestly leads to a result the bidder did not intend, and the authority must establish the bidder’s real intention by analysing the tender as a whole and comparing it with the other tenders and current prices. The authority has discretion in doing so, but the Council will censure a manifest error of assessment. In its reasoning SPI had relied solely on the price breakdowns of Batrageci and its subcontractor. Apart from the landfill costs, however, these did not match: the costs were not described in the same way and not all expressed per tonne. Moreover, the missing digit could have been inserted in the first, second or third position of the price. It could not therefore be inferred from that justification that Batrageci had intended from the outset to offer 155 euros, and the reasoning mentioned no other indication. SPI could not, without a manifest error of assessment, find that there had been a clerical error. The first limb of the first plea was serious; the Council did not examine the second limb. SPI pointed to no adverse consequences of a suspension. The Council suspended the award decision of 30 July 2026, ordered immediate enforcement, kept the tenders and the price justifications of Chêne and Batrageci confidential — even though the applicants had asked for access to the latter — and reserved costs.
Why does this matter?
The judgment draws a sharp line between correcting a clerical error and amending a tender after opening. A bidder who discovers during a price inquiry that an item is priced far too low cannot simply invoke a ‘typo’ and raise its price while keeping its ranking: that would undermine the principle that tenders cannot be altered and the equal treatment of competitors. The authority may only correct an error where the bidder’s real intention is clear, preferably from the tender itself and from comparison with other tenders and current prices. A justification drawn up afterwards that does not tie in neatly with the subcontractor’s figures does not provide that proof. The judgment is also instructive because the Council itself compared the confidential price justifications: the fact that the applicants could not see those documents did not prevent a serious review. With a difference of 590 euros on almost a million, that one item decided the award — which underlines all the more the importance of a strict application of article 34.
The lesson
Authorities: treat an error that only surfaces during the price inquiry with suspicion. Check whether the bidder’s real intention is apparent from the tender itself, from comparison with the other tenders and from current prices, and give concrete reasons. Really compare the justification of the bidder and that of its subcontractor: same items, same units. If the intention is not certain, you may apply the unit prices or reject the tender as irregular — but you cannot let the bidder pick the right price itself. Bidders: double-check items for asbestos and other hazardous waste before submitting; correcting an error afterwards only works if the correct price is unmistakably apparent from your tender. Unsuccessful bidders: where a competitor ‘corrects’ its price after opening and thereby stays the cheapest, it is worth challenging that correction, even if you cannot see the justification yourself.
Ask yourself
As an authority: is the bidder’s real intention apparent from the tender itself and the comparison with other tenders, or only from what it says afterwards? Do the price breakdowns of the bidder and its subcontractor match, with the same items and the same units? Can the missing or wrong digit be filled in only one way, or are there several possible ‘correct’ prices? Does your reasoning state which indications convinced you that there was a clerical error? As a bidder: have you checked the unit prices of sensitive items such as asbestos removal before submitting? As an unsuccessful bidder: have you checked whether the successful bidder had a price corrected after opening, and with what effect on the ranking?
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 →