The Council of State does not accept the limited financial impact of an abnormal price as a justification for nevertheless accepting a tender

The Council of State does not accept the limited financial impact of an abnormal price as a justification for nevertheless accepting a tender

In a suspension decision of 30 April 2015 (no. 231.084), the Council of State ruled that a contracting authority must regard a tender as being substantively irregular when it deems a price of an item to be abnormal, even if the financial impact on the total tender price is limited.

The case at the basis of the decision in question concerned an open call for tenders for a works contract. Within the framework of the price examination, the contracting authority asked the lowest tenderer to justify the prices of eight particular items. The total price was not regarded as abnormal. After receipt of the price justification, the authority decided that the submitted price justification for five of these items could be accepted. It did not accept the price justification for the other three. However, it concluded that the three non-accepted items involved a relative insignificant irregularity, given that these items represented only 2% of the average tender amount. It thus awarded the contract to this tenderer with the lowest tender.

The Council of State, however, suspended the award decision, because a literal reading of the articles 21, §3 and 95, §3-§4 of the Royal Decree of 15 July 2011 on the Award of Public Procurement Contracts in the Classical Sectors and of the report to the King would compel the absolute invalidity of a tender in the event that a price justification is rejected in an optional price examination. According to the Council of State, the limited financial impact of the unit prices involved on the total tender price did not constitute a reason for departing from this rule. This strict approach is in line with other recent decisions of the Council of State1.  

1Council of State 30 November 2009, no. 198.368, NV Bouwbedrijf VMG-De Cock; Council of State 13 August 2013, no. 224.473, NV Terra Engineering & Consulting, Council of State 3 March 2014, no. 226.596, NV B&R – Bouw en Renovatie; Council of State 24 October 2014, no. 228.927, Ghent Dredging en Algemene Aannemingen Soetaert; Council of State 26 February 2015, no. 230.345, NV Aswebo et al.

For more information on this specific subject, please contact Kris Lemmens (the author & head of department) and Sofie Marnef and Jan De Leyn (the authors).