IFAPME training centre in Tournai: the award to Kumpen, four million below the estimate, withstands the extreme-urgency suspension
The Dherte temporary partnership challenged, under extreme urgency, the award to Kumpen of the promotion-of-works contract for an IFAPME training centre in Tournai — partly because Kumpen’s price was about four million euros below the estimated sixteen million — but the Council of State rejected the application because no presumption of price anomaly weighed on Kumpen’s tender, the award on the global price did not have to be broken down item by item, and the contested decision was adequately motivated.
What happened?
On 17 March 2014 in the Bulletin of Awards, and on 21 March 2014 in the Official Journal of the European Union, IFAPME published a notice for a promotion-of-works contract: the construction of a new training centre in Tournai. The contract (specifications no. 13 – T – AOE – Centre de formation I.F.A.P.M.E. de Tournai – 2014) was awarded by open call for tenders with European publicity and included, among other things, the acquisition in full ownership by IFAPME of both the land and the ‘low-energy’ centre to be built by the promoter, the architectural and stability assignments, the special techniques, the filing of permits, the execution of all works, the layout of surroundings and car parks, a five-year warranty on heating, ventilation and air-conditioning equipment, and the coordination of subcontractors. The building had to stand on a plot of at least one hectare within 1,500 metres of Tournai station. Tenders were due by 17 September 2014. By decision of 26 September 2014, IFAPME awarded the contract to Kumpen. The Dherte – Dherte-Istasse – Enertec temporary partnership and its three members sought suspension under extreme urgency. They argued, among other things, that competitors could not believe the decision — taken in eight days — had been preceded by a serious examination, and that it was impossible to understand how Kumpen had pulled off offering a price about four million euros below the normal price of sixteen million; they also alleged the authority had failed to specify which documents on technical and professional capacity it had requested from Kumpen. The Council of State rejected these complaints. The ‘OK’ entry in the ‘set of required documents’ table next to Kumpen’s name was enough, without further motivation, to understand that the required documents on land ownership and soil studies were attached to Kumpen’s tender and met the specifications; this was confirmed by the administrative file. Moreover, no presumption of anomaly weighed on Kumpen’s price, so the authority did not have to state expressly that the price did not affect the tender’s validity; and since the price criterion compared tenders on the global price, that global price did not have to be broken down by main component, without the applicants being prevented from criticising the assessment of Kumpen’s price. Finally, it was inaccurate to claim the authority had failed to specify which documents it had requested: the contested decision expressly stated that Kumpen had not attached certificates of good execution for the stability assignments and that the authority had asked Kumpen and Tradeco — without setting any additional requirement — for the missing documents by 23 September 2014, 1 p.m. The plea was not serious. The Council rejected the suspension, left 800 euros in costs to the applicants (200 each) and awarded IFAPME a procedural indemnity of 700 euros. Except for pages 96 to 98 of Kumpen’s tender, which had been disclosed to the applicants, the tenders remained provisionally confidential.
Why does this matter?
The judgment tames an intuition many unsuccessful bidders share: a strikingly low winning price must surely be suspect. The Council of State recalls that a price only triggers a duty of examination and motivation where a presumption of anomaly weighs on it; absent such a presumption, the authority need not justify why it accepts the price. The judgment also clarifies that an award on the global price requires no breakdown by component, and that the duty of motivation is met as soon as the bidder can deduce from the file why it lost — an ‘OK’ in a verification table can, together with the administrative file, suffice. On the often-sensitive point of selection criteria, the judgment shows that an authority may, after opening, request missing evidence of technical capacity (such as certificates of good execution), as long as it adds no new or heavier requirement. The broader message is sober: marvelling at a low figure is not enough; whoever challenges the award must point to a concrete irregularity, not merely a suspicion of a too-cheap competitor.
The lesson
A surprisingly low winning price is not, in itself, a ground for suspension. If, as a bidder, you want to challenge an award for an abnormally low price, show that a concrete presumption of anomaly weighs on that price; without such a presumption, the authority need not motivate why it accepts it. Ask too whether the criterion works on the global price: if so, you cannot demand a breakdown by item, though you may still criticise the price assessment on the merits. As an authority, the judgment confirms that you may, after opening, request missing evidence of technical capacity, provided you add no further requirement, and that a clear reference in your file (down to an ‘OK’ in a verification table) suffices to motivate your decision. Speed of decision — here eight days — is not in itself a defect as long as the file supports the assessment.
Ask yourself
Do you point to a concrete presumption of price anomaly, or does your criticism stop at astonishment over a low winning figure? Does the criterion work on the global price? If so, do you realise you cannot demand a breakdown by item, but may still challenge the price assessment on the merits? As an authority: when you requested missing documents after opening, did you keep to the original requirements without adding new or heavier conditions? Can an unsuccessful bidder deduce from your administrative file — if need be from an ‘OK’ in a verification table — why it was not chosen?
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 →