Londerzeel awards to the abnormally low bidder without genuinely testing the price justification — and the Council of State annuls
The municipality of Londerzeel awarded the conversion of the Malderen presbytery into an out-of-school childcare facility to De Brandt, whose bid of 793,000.44 euros lay more than 15% below the average; because the municipality reproduced the requested price justification almost word for word without genuinely examining it, the Council of State annulled both the award and the implicit decision not to award to Bouwbedrijf VMG – De Cock.
What happened?
The municipality of Londerzeel held an open tender for works on the Malderen presbytery, to be extended and converted into out-of-school childcare premises (specifications no. 2012-046, announced in the Bulletin of Tenders of 2 June 2012). At the opening of the bids on 6 July 2012, five offers were on the table, VAT excluded: De Brandt at 793,000.44 euros, Alpas at 908,139.07 euros, Bouwbedrijf VMG – De Cock at 950,000.00 euros, Hero Construct at 992,318.31 euros and Vochten at 1,001,060.97 euros. De Brandt's bid lay more than 15% below the average and therefore had to be checked for a possible abnormal character. By letter of 12 September 2012 the project architect asked De Brandt for a price justification for its total bid amount and for a series of specific unit prices. On 19 September 2012 De Brandt replied with a generally worded letter — referring to its machinery, the short distance to the site, its cooperation with regular subcontractors and discounts for cash payment — accompanied by a bundle of technical sheets and a few subcontractor quotes. In the award report of 24 September 2012 the architect declared the second-lowest bid (Alpas) irregular for missing unit prices and proposed awarding the contract to De Brandt; the council decided accordingly on 1 October 2012. Bouwbedrijf VMG – De Cock challenged that award. The Council of State found that the municipality had not examined the price justification with the required seriousness and care: the award report reproduced De Brandt's letter almost verbatim without discussing or evaluating the elements put forward. Those elements were moreover vague and general, unsupported by documents, and applied just as well to any bidder — the machinery, the proximity of the site and the regular subcontractors did not explain in concrete terms how De Brandt in particular reached such a low price, and the discounts invoked remained a bare assertion. The Council also rejected the argument that De Brandt only had to justify the amount above the 15% threshold: article 110, § 4, of the Royal Decree of 8 January 1996 concerns the abnormal character of the bid price as a whole, and the request for justification itself expressly spoke of the 'total bid amount'. That the contract was subsequently performed within budget was irrelevant, since performance in principle plays no part in assessing the prior award decision. The municipality was therefore not entitled to treat De Brandt's bid as sufficiently justified and should have set it aside as irregular under article 110, § 4, last paragraph, 2°. The Council annulled the award decision of 1 October 2012 and the implicit decision not to award the contract to VMG – De Cock, and ordered the municipality to pay the 175-euro costs.
Why does this matter?
The judgment pins down exactly what testing an abnormally low bid involves. In a works tender with at least four offers, checking every bid lying more than 15% below the average is not a free choice but an obligation: the authority must either formally state its reasons for rejecting the presumption of abnormality, or request a price justification and then genuinely examine it. The latter is the heart of the matter. The authority enjoys broad discretion and the Council of State does not put itself in its place, but the Council does verify whether the administration acted with care. An award report that simply copies out the bidder's justification letter does not pass that test: it does not show that the justification was in fact examined. For authorities, the message is that the lowest price is no free pass and that an abnormally low bid demands a reasoned, concrete assessment. For bidders who just miss out on the award, the judgment shows that the way a competitor justifies its low price — and how the authority deals with it — is a fertile ground for a challenge.
The lesson
If you are an authority and a bid in a works tender lies more than 15% below the average of at least four offers, you must check its abnormal character: either formally give reasons for rejecting that presumption, or request a price justification. If you request one, genuinely examine it — discuss the elements put forward in concrete terms, verify whether they really explain the deviation, and make your assessment visible in the award report. A report that merely reproduces the bidder's letter is not enough, and general assets such as machinery or a nearby site do not by themselves explain a low price, because they apply to everyone. Do not mistake the scope either: what must be justified is the entire bid price, not just the part above the 15% threshold. If you are a bidder, it pays to check, when a competitor's bid looks suspiciously low, whether the authority weighed the price justification carefully; if that did not visibly happen, the award is vulnerable.
Ask yourself
Does a bid lie more than 15% below the average of at least four offers? Then checking its abnormal character is mandatory, not optional. Does your award report examine the price justification concretely, or does it merely reproduce the bidder's letter? Do the elements put forward really explain how this bidder in particular reached its low price, or do they apply to any contractor? Does the bidder justify the entire bid price, or only the amount above the 15% threshold? Do you realise that later performance within budget cannot save the legality of the award decision?
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 →