The regulatory framework
Three principal texts structure the matter. They govern respectively award, performance and the general rules.
| Text | Subject |
|---|---|
| The Act of 17 June 2016 | public contracts, general framework |
| The royal decree of 18 April 2017 | award procedures in the classic sectors |
| The royal decree of 14 January 2013 | general rules of execution |
These texts are amended regularly, and the applicable version is the one in force when the contract was launched. Citing an article without its version is a common and sometimes costly imprecision.
The first governs procedure up to award, the third governs what follows. The bill intervenes in both phases.
Verification of prices by the contracting authority
This is an obligation, not an option, and tenderers know it poorly. It concerns checking the quantities of the summary bill.
The contracting authority submits the tenders received to a verification of prices or costs. For that purpose it may invite the tenderer to supply all necessary information.
That verification pursues a precise aim: to allow award on as correct a basis as possible, so as to improve the comparability of tenders and preserve equal treatment. It protects the contracting authority as much as the tenderers.
An abnormally low or high price is therefore not merely a commercial risk: it triggers a procedure.
What the contracting authority may rectify
The mechanism proceeds in several steps, in a set order. Each step has its own effects and is not skipped.
It first seeks the tenderer's real intention, by analysing the tender and comparing it with the other tenders and with current prices.
Only where that search yields no solution may it invite the tenderer to clarify their intention.
In the absence of clarification, or where the clarification is deemed unacceptable, it rectifies the errors according to its own findings.
Where rectification proves impossible, it may either decide that the unit rates apply, or reject the tender as irregular.
That last point is worth retaining: an inconsistency between rate and total may be resolved in favour of the rate, which is not always favourable to the tenderer. The rule of resolution appears in the texts themselves.
A protection for the contracting authority
An element contractors sometimes lose sight of. Verification does not correct errors belonging to the tender itself.
The liability of the contracting authority cannot be engaged where it fails to detect one error or another. The duty of verification is therefore no guarantee of detection.
A practical consequence follows: relying on verification to repair an error in one's own tender is a strategy without foundation. Internal checking of the tender therefore remains indispensable.
Where the contracting authority rectifies directly within tenders, it retains an original version and ensures the rectifications remain identifiable, the original data staying visible. Traceability of the rectifications is a safeguard for every tenderer.
The sanction for badly drafted derogations
A drafting point whose sanction is severe and often ignored. It concerns the list of derogations from the general performance rules.
Certain provisions of the general rules of execution may be set aside only with formal reasons stated in the particular specification. Absent that statement of reasons, the derogation is deemed unwritten.
In other words, the derogating clause is deemed not written and the general rule applies, whatever the parties intended. The list of derogations is therefore checked before any tender is priced.
Two exceptions to that sanction exist, notably where the parties have signed an agreement. The regime of derogations is set out in the article on clarifications, additions and derogations.
The articles in this branch
The article on who bears the risk of a quantity error covers allocation between the parties. The allocation is explained there by method of price determination.
The article on variants, options and conditional items covers their structuring in the bill. Their treatment in the bill is specified there.
The article on variations and interim valuations covers the execution phase. The mechanism of the final account is set out there.
The article on measurement and price revision covers the link between item structure and formulas. The link between quantities and the revision formula is covered there.
This article reflects the position of the rules at the date of checking and serves professional orientation. It does not constitute legal advice and does not replace assessment of the individual case.