Three years of identical works as a subcontractor for the same contracting authority — yet your price is declared 'abnormal' without that fact being assessed
The Council of State annuls the award of motorway maintenance in Flemish Brabant (A-roads West, EUR 450,000) to Deckx Algemene Ondernemingen because the Roads and Traffic Agency dismissed the price of the lowest bidder, Norré-Behaegel (–72.60% discount), as abnormal without addressing its central justification — that it had executed the very same lot for three years as a subcontractor for ABOG at comparable prices.
What happened?
In 2013 the Flemish Region's Roads and Traffic Agency (AWV) opened a stock tender for motorway maintenance in Flemish Brabant. Lot 1 ('A-roads West', tender 1M3D8F/13/16) was a one-year framework agreement, renewable three times, for around EUR 500,000 incl. VAT per year. Unit prices were fixed by the contracting authority; bidders offered a single adjustment percentage. Norré-Behaegel from Roeselare bid the highest discount at –72.60%; Deckx from Dessel came fourth with –55.00%. AWV requested price justifications from the four cheapest bidders. Norré-Behaegel's reply included a critical element: it had been performing virtually the entire maintenance of those same motorways for three years as a subcontractor for ABOG, at prices in line with its current bid, with supporting invoices. The award report nonetheless rejected the justification as 'merely referring to projects already executed' and ignored the subcontracting element. On 24 September 2014 the contract was awarded to Deckx for EUR 450,000. The Council of State found two breaches: the formal duty to state reasons (additional reasoning given only in the response brief cannot rescue an incompletely motivated decision) and the duty of due care (the report's reply on identical past performance was 'neither pertinent nor proportionate'). The Council annulled the award decision and ordered the Flemish Region to pay EUR 400 in court fees and EUR 700 in legal-cost compensation. A fourth ground based on the patere legem principle and equal treatment was rejected.
Why does this matter?
Stock tenders with fixed unit prices are common for maintenance contracts. Deep discounts are structurally inevitable for competitive operators, so the real question is rarely the discount itself but the quality of the price justification — and the quality of the contracting authority's reply to it. For bid managers, this judgment provides leverage when generic dismissals ignore concrete references to identical past performance. For contracting authorities, an 'every contract is unique' reply is not a motivation when the bidder points to substantially identical earlier work; passing over such a central element triggers annulment on two grounds at once.
The lesson
As a bid manager: if your price justification cites concrete past performance — particularly subcontracting for the same authority — back it up with invoices, price details, and comparability arguments. On rejection, have your counsel check whether the award report engages with that core element or merely dismisses it as 'generic'. If it does the latter, you have a double ground for annulment. As a contracting authority: address every substantial justification element explicitly, especially references to identical past contracts. A blanket 'every contract is unique' will not save your decision, and arguments added only in your defence brief cannot cure an incomplete motivation.
Ask yourself
Does your award report rely on generic formulas ('merely refers to past projects', 'geographic differences', 'every contract is unique') when the bidder explicitly references performance — as subcontractor or main contractor — of the same or a comparable contract for your own organisation? If so, your decision sits in this configuration and is vulnerable to annulment.
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 →