Tenders above the estimate: abandon, negotiate, retender

An overrun is measured on a comparable basis. The estimate and the tenders must cover the same scope, at the same value date, excluding VAT. In a public contract, the estimate is a legal obligation: "the value of the contract must be estimated", and that value is understood excluding VAT (act of 17 June 2016, art. 16; unofficial translation, as are all quotations of legal texts below). An estimate dated 18 months back, or one that leaves out site set-up, does not measure an overrun: it measures its own delay. The method is described in the article on the mandatory estimate in a public contract.

The examination of tenders comes before the decision. The royal decree of 18 April 2017 imposes an order: correction of errors (art. 34), verification of the prices of all tenders (art. 35), examination of prices that appear abnormally low or high (art. 36). That examination may, on its own, change the ranking or reveal that one item weighs on every tender. It is detailed in the article on abnormal prices and price verification.

Next, break the gap down into three causes. Reading item by item shows whether the gap comes from:

Cause	Sign in the tenders	Logical response
Price	all tenders dearer on the same items, quantities as expected	update the estimate, negotiate if the procedure allows it
Quantities	gaps concentrated on provisional or poorly described items	correct the métré (meetstaat, bill of quantities) before retendering
Programme	items not estimated, specification requirements heavier than planned	reduce or rewrite the programme

A single cause is rare. Most often, an overall gap combines an over-optimistic estimate on a few heavy items with a tight market on others. The decision follows the dominant cause.

The pouvoir adjudicateur (contracting authority) is never bound to award. Article 85 of the act of 17 June 2016 is explicit: "Carrying out a procedure does not imply an obligation to award or conclude the contract". The contracting authority may decide not to award, or start the procedure again, "if need be in a different way". The decision not to award is published (an amendment introduced by the act of 8 February 2023).

Abandoning is not an admission of failure, it is a management decision. Awarding a contract that cannot be financed pushes the problem onto the site, where it will cost more: a programme cut during execution, modifications negotiated without competition, or a halt. The right not to award protects the budget, and the decision is best grounded in verifiable evidence.

The justification is prepared with the file. A dated, itemised estimate, the tender comparison table and the analysis of the gap form the record that justifies the decision. Without it, abandoning looks like an arbitrary choice.

This is a confusion to avoid, because it is risky. Article 42, § 1, 1°, c) of the act allows the procédure négociée sans publication préalable (negotiated procedure without prior publication) where, following an open or restricted procedure, no tender or no suitable tender has been submitted, without substantial change to the initial conditions. The act itself defines the notion: "a tender is not considered suitable where it is irrelevant to the contract". It is therefore not for the contracting authority to treat it as equivalent to a tender that exceeds its estimate.

Exceeding the estimate does not, on its own, make a tender "unsuitable". Basing a negotiated procedure on that equivalence weakens everything that follows. If the contracting authority considers that route, it checks the statutory definition and the specific case with its adviser, and documents why the condition is met.

Negotiation depends on the procedure chosen at the outset. In the negotiated procedure without prior publication (expenditure to be approved below 140,000 euros HTVA (excluding VAT), royal decree of 18 April 2017, art. 90, 1°) and in the direct negotiated procedure with prior publication (works with an estimated value below 750,000 euros excluding VAT, act, art. 41, § 1, 2°), the contracting authority may negotiate. In an open procedure it may not: it awards on the tenders submitted or it does not award. The conditions are detailed in the article on the procedures that allow negotiation.

Negotiating without a counterpart does not hold. A price cut obtained without any change in scope is often shifted onto quality, time or future variations. Useful negotiation bears on identified elements: an overvalued item, an option to withdraw, a specification requirement to relax, with the same information given to every tenderer.

Keep a record of every round. Every version of a tender, every question and every answer is dated. That file is what makes it possible to justify the award and, in a dispute over execution, to know what was included in the price.

Starting again unchanged produces the same result. The act allows the authority to start again "if need be in a different way": this is the opportunity to correct whatever caused the gap.

Revise the estimate. If the gap comes from prices, the updated estimate becomes the new budget or forces a programme cut. It may also cross a threshold, and therefore change the procedure: an estimate that reaches or exceeds 750,000 euros excluding VAT closes off the direct negotiated procedure with prior publication.

Revise the programme. If the gap comes from the programme, it must be reduced or rewritten. On the architect's side, any change to the programme must be the subject of a convention additionnelle (additional agreement) stating its financial impact (code of ethics of the Ordre des architectes (Order of Architects) of 16 November 2022, art. 16).

Revise the packaging. A contract too large for the local pool of contractors, an execution period that is too short or a badly chosen submission period all reduce competition. Changing the division into lots or the timetable can bring in more tenders.

Option	Possible gain	Cost for the client	Effect on time
Award anyway	none	overrun financed from the contingency or by additional budget	none
Negotiate (if allowed)	gap reduced on identified items	risk of shifting onto quality or variations	a few weeks
Reduce the programme and retender	gap corrected at source	fees for rework, additional agreement	several months
Abandon	budget preserved	design work lost or to be resumed later	project suspended

Time itself has a price. Retendering moves the value date of the prices: the new estimate and the new tenders are calculated at a later date, and the financing must remain available meanwhile. The trade-off between expected gain and delay is costed before the decision, not after.

The private client has every option, and no obligation. They may negotiate with one, two or all of the contractors, consult other contractors, reduce the scope or change the procurement arrangement. There is no decision to publish.

The discipline stays the same. Break down the gap, negotiate on identified items, ask for a revised written tender rather than an oral discount, and keep every version. A reduction in scope decided during negotiation must appear in the final tender, item by item.

Close the negotiation before signing. In a marché à forfait (lump-sum contract) based on a plan drawn up and agreed, article 1793 of the old Civil Code forbids any price increase for changes that have not been "authorised in writing, and the price agreed with the owner". Signing while promising oneself to adjust later amounts to negotiating without competition, once the contract is concluded.