€140,000 over budget and the only bidder: the social welfare centre was allowed to abort and re-tender
The sole bidder for a four-year catering contract came in €140,000 above the estimate — the OCMW Geraardsbergen overrode the favourable recommendation of its own procurement office, stopped the procedure, and the Council of State accepted that decision.
What happened?
In May 2015, the OCMW (social welfare centre) of Geraardsbergen launched an open invitation to tender for the preparation and delivery of meals — both meals-on-wheels and meals for the De Poort neighbourhood centre — totalling around 38,050 meals per year, over four years. The estimate was €747,169.80 excl. VAT (€792,000 incl. 6% VAT), or about €5.20 per meal incl. VAT. Compass Group Belgilux NV was the only bidder. Its price: €890,370 excl. VAT (€943,792.20 incl. VAT) — roughly €140,000 over the estimate. The Head of Budget and Procurement drew up an award report scoring 60/60 on price and 32.42/40 on quality, and recommended declaring the offer compliant and awarding the contract to Compass. The OCMW council decided otherwise. On 9 September 2015 it stopped the procedure and announced a re-tender, citing: the offer is significantly above the estimate, there is doubt about the competitive nature (one bidder, no comparison possible), and the amount exceeds the operating budget. Compass took the case to the Council of State. Compass argued: the estimate was too low (€4.52/meal calculated over five years instead of four); there is no logical link between 'sole bidder' and 'not competitive'; and the council could not simply override its own procurement experts without a heightened duty to justify. It also pointed to a comparable contract (Zonnestraal childcare) with a single offer that was awarded in the same council meeting. The Council of State rejected the action. Article 35 of the 15 June 2006 Act (now article 85 of the 2016 Act) expressly gives contracting authorities discretion not to award and to restart the procedure, provided the decision rests on sound reasons. The estimate was not unreasonable (based on four years, averaging €5.20/meal) and Compass produced no counter-evidence that its price was market-conform — bare assertion is not enough in extreme-urgency proceedings. An overrun of about €140,000 on a €747,000 estimate (~19%) is on its own a sufficient ground for termination, especially when it also creates a budgetary problem. The 'sole bidder' motive was not decisive on its own; it explained why the overrun could not be tested against competing offers. The Zonnestraal comparison failed: different context, different amount (€7,598.80), no significant overrun. And the contracting authority did not have to expressly override its internal award proposal, because it never took a regularity decision — it stopped the procedure before that stage.
Why does this matter?
For bid managers, this means 'we are the only bidder and our award report is positive' is not a safe harbour. A contracting authority that does not see its budget or its competition working out can pull the plug at the threshold of award — and the Council will not easily strike down that decision as long as there is one supporting reason. For contracting authorities it confirms that article 85 of the 2016 Act is workable, but also that motivation must be solid and the estimate defensible.
The lesson
If, while preparing your offer, you realise your price is significantly above the estimate: anticipate. Build a documented justification of why your price is market-conform (references, food price indices, cost calculations). You will need that documentation in any suspension proceedings — simply asserting that the estimate was too low will not work.
Ask yourself
If we are bidding ~15-20% above the estimate and we are the sole bidder: do we already have a written justification of our price, with indices, comparable contracts and cost structure?
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 →