If your consulting engineer says 'request a price justification' and you don't — explain why
The Council of State suspends a EUR 4.05 million road-works award because the city of Nieuwpoort dismissed without explanation its own consulting engineer's advice to request a price justification for seven abnormally low unit prices.
What happened?
The city of Nieuwpoort tendered an open public works contract for renewal of the Franslaan in Nieuwpoort, budgeted at EUR 5.78 million incl. VAT. Six bids came in; THV Seru–Vanlerberghe led at EUR 4,048,828.58. Consulting engineer SCES drafted the award report on 18 December 2015. At total-price level, the lowest bid was 14.84% below the mean — just under the 15% threshold of article 99 §2 KB Plaatsing — so no overall price justification was required. But seven unit prices in Seru–Vanlerberghe's offer (posts 132, 216, 290, 342, 344, 346 and 359) were flagged as abnormally low, and the engineer expressly advised requesting a price justification. On 12 January 2016 the city awarded the contract to Seru–Vanlerberghe and decided NOT to request the price justification — without explaining why. The award decision merely stated that 'the decision to request a price justification is a choice of the contracting authority'. In its filing before the Council, the city then argued that the seven posts had only minor impact on the total and could not change the ranking. The Council of State (XIIth Chamber) held that under article 21, §3 KB Plaatsing price justification is strictly required only if the authority wants to reject the offer on abnormal-price grounds. But the duty of due care requires an actual price examination, and where the authority departs from its own consulting engineer's express advice in a crucial matter, it must put its own appraisal in place — visible in the award decision itself. Here, the city merely 'asserted its freedom of choice'. A posteriori reasoning in the brief before the Council cannot be considered. The plea succeeded; the award was suspended.
Why does this matter?
For contracting authorities this is a precision text: pointing to your discretion is not the same as exercising it. If your engineer advises one action and you take another, that other path must be visible in the award decision itself — not in a note filed three weeks later before the Council. For bid managers it's a lever: if the engineer's advice was silently overridden in the administrative file, you have a formal-motivation ground to challenge the award — regardless of whether the substantive assessment was eventually right.
The lesson
If an award decision is presented to you in which the engineer advises something the authority does not do (a price justification, an additional check, a specific review), make sure the award decision itself says why. Three sentences, own appraisal, concrete. Not: 'it is our discretion'. Not: 'according to our internal calculation…' (without that calculation attached). And as a bid manager: open every award decision with the question 'does the authority fully follow its engineer, or is there an unexplained divergence between advice and decision?'
Ask yourself
When the award decision globally endorses the engineer's report BUT does not execute a specific recommendation (price justification, irregularity flag, clarification request): is the reasoning for that gap in the decision itself — or do you have to guess? In the latter case, there is a challengeable formal-motivation defect.
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 →