27 per cent below the average, but 0.35 per cent off the estimate: SOFICO simply did not have to question Viabuild Sud
Sogeplant challenged, under extreme urgency, SOFICO’s award to Viabuild Sud of a maintenance contract for bituminous road surfaces, whose bid of 735,630.43 euros lay more than 27 per cent below the average of the four bids — but the Council of State held that SOFICO had properly given formal reasons for treating that price as normal, relying on the price bureau’s opinion and a deviation of a mere 0.35 per cent from the revised estimate, and therefore did not have to question the bidder.
What happened?
On 26 June 2013 SOFICO published a works contract (DG01-42-21) for a supplementary maintenance agreement covering bituminous road surfaces, special specifications no. 01.04.02-13C92, to be awarded by open adjudication — that is, to the lowest regular bid. Four bids were opened on 7 August 2013: Colas Belgium 1,146,040.61 euros (1,146,044.24 after correction), Sogeplant 1,004,395.83 euros, Pirlot Jacques 1,016,767.89 euros and Viabuild Sud 735,630.43 euros. Viabuild Sud thus lay 27.21 per cent below the average as calculated under article 110, § 4, second paragraph, 2° of the Royal Decree of 8 January 1996 — well beyond the 15 per cent threshold that triggers a check for abnormality. SOFICO referred the bid to the price bureau of the Walloon public service. That bureau found the bid acceptable: it deviated only 4.52 per cent from the administrative estimate and, after the bureau revised that estimate, a mere 0.35 per cent. On that basis, SOFICO’s management committee awarded the contract to Viabuild Sud on 10 September 2013, without asking the bidder to justify its prices. Sogeplant, ranked second, went to the Council of State on two pleas. The core of the first: whoever finds one bid 27 per cent below the average must investigate that price — and if it nonetheless calls that price normal, it must logically find the other three bids abnormally high and question those bidders too. Moreover, SOFICO had never questioned its own estimate, even though it lay more than 30 per cent below the average of the three other bids. The second plea attacked the reasoning itself: the decision contained a stereotyped, half-completed boilerplate sentence (‘Given the gap between the lowest bid and the Administration’s estimate (or another case provided for in article 110 § 3 or § 4 [...] to be specified according to the file)’), did not quote the price bureau’s opinion in full and did not annex it. The Council of State dismissed both pleas. Article 110, § 4, third paragraph in fact offers the authority a choice: either state formal reasons in the award decision for rejecting the complaint of apparent abnormality (1°), or ask the bidder for justification (2°). SOFICO took the first route and reasoned it by the 0.35 per cent deviation from the revised estimate, which it called ‘small’ — that suffices. A body that opts for 1° need not question the bidder. As for the finding that the three other bids would be abnormally high, Sogeplant cited no binding provision requiring it, and such a finding serves no purpose where the authority retains a bid whose overall price appears normal to it. The unfortunate boilerplate sentence was not fatal: the rest of the decision left no doubt as to why the price was found acceptable. The price bureau’s opinion did not have to be annexed, because the decision did not refer to it but partially integrated it. The reliance on judgment no. 218.323 of 6 March 2012 (Eurovia Belgium) failed: there the authority had asked for price justification and then accepted it with vague reasoning that made any judicial review impossible. The application was dismissed; SOFICO’s request to keep Viabuild Sud’s bid confidential was declared without object because the bid was never properly filed. Sogeplant pays 175 euros in costs.
Why does this matter?
The 15 per cent rule of article 110, § 4 is often read as an automatic duty to investigate: if a bid falls far below, the authority must question the bidder. That is wrong. The provision gives the authority an express choice — formally reason why it rejects the complaint of abnormality, or ask for justification — and the Council of State confirms that the first option is a full-fledged one. The bar for that reasoning is low: a single sentence pointing to a small deviation from the (revised) estimate suffices, especially where an independent price bureau has checked that estimate. That shifts the centre of gravity of the debate back to the estimate, exactly as in the Dutch-language judgment no. 225.103 of six days earlier. The judgment also defuses a tempting but weak line of argument: if the lowest price is normal, are the other three not abnormally high? The Council answers soberly that no provision obliges the authority to make such a finding and that it serves no purpose where the authority wishes to retain the lowest bid. Finally, the contrast with Eurovia Belgium shows where the real line runs: an authority that does ask for justification must also explain why it accepts it — a vague acceptance allowing no judicial review is sanctioned. Asking nothing requires less explanation than asking and then falling silent.
The lesson
As a bidder in an open adjudication for works: the 15 per cent threshold of article 110, § 4 gives you no right to have your competitor questioned. First check which of the two routes the authority took. If it formally reasoned why it rejects the complaint of abnormality — usually by reference to its estimate — then you must attack that estimate, not the gap between the bids. If, by contrast, it did ask for justification and accepted it with an empty phrase, that is where your chance lies (compare judgment no. 218.323, Eurovia Belgium). The argument ‘if the lowest is normal, the others are abnormally high’ gets you nowhere. On notification, immediately request the award decision and, if possible, the price bureau’s opinion. As a contracting authority: where a bid falls below the 15 per cent threshold, seek an opinion from a price bureau and set out concretely in the award decision why you reject the complaint of abnormality — in figures, the deviation from your (possibly revised) estimate. Do clean up your template phrases: the half-completed boilerplate formula survived here, but the Council called it less than felicitous, and it invites a plea you can do without.
Ask yourself
Do you know that where a bid falls more than 15 per cent below the average, the authority may choose between formally reasoning why it rejects the complaint of abnormality and asking the bidder for justification — and that in the first case it need ask nothing at all? Have you checked how the winning price relates to the estimate (and to any estimate revised by a price bureau), and not merely to the average of the bids? Do you realise that the argument ‘then the other bids are abnormally high’ rests on no binding provision? And as a contracting authority: does your award decision state a concrete, numerical reason why you accept the low price — or merely a half-completed template sentence?
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 →