A lowest price is not 'abnormally low' when it sits 45% above the authority's own estimate
Although the winning bid on a single sub-item was seven times lower than the applicant's, the Council of State refused to suspend the award — because the price still sat 45% above the contracting authority's estimate, and thus did not trigger the statutory duty to seek price justification.
What happened?
The Institut Jules Bordet launched an open tender for the construction of a new cancer hospital on the ULB Anderlecht campus. Lot 1 covered the gros œuvre fermé (NIBI-14-01-GO), a multi-million euro contract. Six firms bid, including the applicant joint venture GALERE–CEI DE MEYER and the eventual winner CFE–CIT BLATON–LOUIS DE WAELE. Only two bids passed qualitative selection and were regular — CFE et al. (lowest) and ERAERTS–JAN DE NUL–STRABAG. Had all bids cleared selection, GALERE would have ranked third behind CFE and BESIX. On 7 April 2015 Bordet notified GALERE of the award. GALERE filed in extreme urgency. The first ground — incompetent organ or insufficient motivation because only a letter from the project director was attached, not the board's deliberation — failed: Bordet proved that its board had approved the analysis report on 27 March 2015, and a notification error does not vitiate the decision itself. The third ground was the concrete one. GALERE pointed at sub-item 01.7.1 'High-density blocks': their unit price was €7,365/m³, CFE's was €1,163/m³ — seven times lower. The price gap on this one sub-item alone was about €2 million. Under Article 21, §3 of the Royal Decree of 15 July 2011, Bordet should — they argued — have asked CFE to justify the price. The Council disagreed. Bordet had estimated this sub-item at €800/m³ in its own metré estimatif. At €1,163/m³ CFE was 45% above the estimate, not below. The fact that other bidders had quoted much higher, and that both GALERE and Bordet's estimator had consulted the same specialised firm (VERITAS), did not make Bordet's estimate manifestly unreasonable. Contracting authorities enjoy a wide margin of appreciation when judging whether a price 'appears' abnormal, and that margin was not clearly exceeded here. The UDN claim was rejected, €850 in costs charged to the applicants.
Why does this matter?
Bid managers who see a competitor win on suspiciously low unit prices often jump straight to the duty to seek price justification. This arrest shows that duty does not arise automatically just because bids differ wildly between themselves. It hinges on the gap against the authority's own estimate. If the winning price still sits above the estimate, you can hardly blame the authority for not finding it 'abnormal'. For contracting authorities: a solid, documented estimate — backed by external expertise — is what shields you from later price disputes.
The lesson
When attacking a competitor's low price in a UDN: don't only compare to your own price, compare to the authority's estimate. If that estimate still lies below the contested price, you are weak. The fallback is to attack the estimate itself as manifestly unreasonable — a much heavier burden. For contracting authorities: build your estimate with external expertise and document the methodology, because in a price dispute the estimate is the anchor.
Ask yourself
A competitor wins with a much lower price on a specific item. Before launching a UDN: obtain (via access rights or public documents) the contracting authority's estimate for that item. Is the winning price below that estimate? You have a candidate ground. Above? Then your second front must be the manifest unreasonableness of the estimate itself — a much higher bar.
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 →