Tendering without losing the budget

A tender commits to a price, not to a budget. The budget contains items the tender ignores (fees, contingencies, price revision). Before saying that a tender "exceeds", both must be brought to the same basis, the same value date and the same scope, as the guide on the client's construction budget points out.

The architect has a defined role at this stage. The code of ethics of the Ordre des architectes (Order of Architects) of 16 November 2022 (art. 22) requires the architect to assist the maître de l'ouvrage (bouwheer, the client) in choosing the contractor "under the best conditions of price and quality" (unofficial translation, as are all quotations of legal texts below). The decision remains the client's.

In a public contract, the act of 17 June 2016 on public procurement (a federal act, applicable in all three regions) and the royal decree of 18 April 2017 on the award of contracts set the order of operations. The levers exist, but each comes with its condition.

Negotiation is not a general right. The procédure négociée sans publication préalable (negotiated procedure without prior publication) is available when the expenditure to be approved is below 140,000 euros HTVA (excluding VAT) (royal decree of 18 April 2017, art. 90, 1°); the direct negotiated procedure with prior publication is open to works whose estimated value is below 750,000 euros excluding VAT, and there the pouvoir adjudicateur (contracting authority) "may negotiate" (act, art. 41). In an open procedure, there is no negotiation.

The right not to award is the real safety valve. "Carrying out a procedure does not imply an obligation to award or conclude the contract" (act, art. 85): the contracting authority may abandon or start again, if need be in a different way.

In a private contract, freedom is wide; the risk is comparing badly. As long as nothing has been signed, a private client may negotiate, retender, reduce the scope or change contractor without any procedure. The downside: nothing obliges them to compare on an identical basis, and that is where the budget is lost.

One discipline is enough: the same basis for everyone. The same métré (meetstaat, bill of quantities), the same options priced or excluded, the same site set-up items, the same price validity date. The method is set out in the article on comparing two quotes per m².

Negotiation must end before signature. In a marché à forfait (lump-sum contract) based on a plan drawn up and agreed, article 1793 of the old Civil Code allows no price increase for changes that have not been "authorised in writing, and the price agreed with the owner". Whatever is not settled in the signed tender is renegotiated later from a position of weakness.

Three rules apply everywhere. Keep a dated record of every version of a tender and every price exchange. Never compare one total with another without reading the exclusions. Tie every price reduction to an identified reduction in scope, otherwise it will come back as a variation.

The procurement arrangement weighs as much as the price. A main contractor and separate packages do not carry the same coordination costs or the same risk of omissions between trades: the choice is made before tendering, not after.

• The article on tenders above the estimate covers the client's three options when every tender exceeds: abandon, negotiate or retender, and the cost of each.
• The article on the procedures that allow negotiation covers the thresholds and conditions of each procedure, with a summary table.
• The article on abnormal prices and price verification covers the examination of tenders provided for by the royal decree and what an excessively low tender costs in the end.
• The article on main contractor or separate packages covers the effect of the arrangement on price, coordination and the risk of variations.