A comparative unit-price table can be price investigation — even if the runner-up feels nothing has been checked
The Council of State rejects VMG-De Cock's challenge against the award of a school construction contract to a competitor €116,000 cheaper, because the contracting authority did carry out a price investigation with a detailed comparative unit-price table — even though it asked no formal price justification.
What happened?
In May 2014 the city of Dendermonde launches an open tender for the construction and extension of the municipal primary school 'Echo' in Oudegem (estimate: €1,237,891.33 excluding VAT). Three bidders compete. Pyck Michael Algemene Bouwwerken bids €1,149,707.26 — nearly €116,000 below VMG-De Cock (€1,255,984.90) and nearly €196,000 below Dero Construct (€1,331,941.28). On 22 September 2014, the city awards to Pyck. VMG-De Cock turns to the Council of State with a single central grievance: the city did not really investigate prices. The award report says 'no abnormally high or low unit prices were noted', but that, says VMG, is a style clause. There is no analysis of the unit prices where Pyck is clearly cheaper (post 11.22 underpinning, post 32.61 metal roofing, posts 40.32-40.33 joinery, post 53.11.b ceramic tiling — sometimes less than half the price of the other bidders). Add the 8.5% (per VMG; the city says 7%) gap below the estimate, and Pyck's lacklustre financial results. A diligent authority should have probed further. The Council weighs the auditor's report and the file. It finds that the inspection report is more than a style clause: there is per construction-list item a comparative unit-price table drawn up by the architect, with all bidders' unit prices, arithmetic and weighted averages, and the weight of each item in the total bid. At doubtful items the architect placed exclamation marks. The Council holds: this is indeed price investigation, of both totals and unit prices. Then it applies article 21, §3 of the Royal Decree on procurement: an authority only has to ask price justification if it intends to reject the offer for abnormal price. Pyck wasn't rejected, so no obligation to query. A deviation of less than 10% from estimate and average is not a manifestly substantial difference requiring justification. As for specific unit prices — Pyck is often closer to the estimate than VMG-De Cock itself on contested items, or prices vary widely among all bidders. The argument of inconsistency in Pyck's pricing is called 'highly technical' and insufficiently substantiated. The challenge is rejected. VMG-De Cock pays the court fee plus procedure indemnity.
Why does this matter?
Many losing bidders hope to overturn an award by arguing 'the winner bid abnormally low, the authority should have probed'. This judgment sketches the upper limit of that argument. A comparative unit-price table with averages and weights suffices as price investigation — even if it doesn't lead to a formal challenge. The authority retains wide discretion. For bid managers considering a price-based challenge: be able to show more than 'the gap is big' and 'many items are cheaper'. For contracting authorities, this is reassurance: a sound comparative table that flags outliers is enough — as long as it is actually done, not just claimed.
The lesson
As a bid manager challenging on price: build your own item-by-item analysis with figures (winner's unit price vs. yours vs. the estimate, including items where you are cheaper), and point to concrete reasons why a price cannot be realistic (material type, standards, labour hours). A vague 'less than half' comparison won't do. As contracting authority: make sure your file contains a comparative table per item with averages, and mark outliers with exclamation marks or notes. That table IS the price investigation — and if it's there, you don't need to request price justification when you don't want to reject the offer.
Ask yourself
As challenger on price: for at least three items, can you state a concrete reason why the winner's unit price is unfeasible (material cost, labour hours, standard) — and back it with a calculation, not just a percentage?
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 →