Justifying a price by saying 'this is what my subcontractor charges' is no justification — and miss the 30-day clock after a rejected suspension, and you lose your annulment too
Wanty's bid for the rehabilitation of the Oignies mine site was declared irregular because three items had been justified by simply pointing to the subcontractor's price — a justification that does not satisfy art. 21 of the RD of 15 July 2011 — and after the extreme-urgency suspension was already rejected, Wanty filed no request to continue the annulment within 30 days, so the Council of State records the abandonment of the action.
What happened?
On 16 November 2015 the college of Aiseau-Presles took two related decisions on the works for the rehabilitation and redevelopment of the SAR C103 site (Oignies, Saint-Henry shaft): Wanty's bid was declared irregular because items 01430, 01451 and 04119*02 had been justified 'by reference to the price of a subcontractor', a method of justification that, according to the municipality, does not meet art. 21 of the RD of 15 July 2011 on price justification for abnormal-looking prices. The contract was then awarded to Aertssen Terrassements. On 14 December 2015 Wanty filed an annulment action and an extreme-urgency suspension request. Judgment no. 233.475 of 14 January 2016 admitted Aertssen as intervening party and rejected the suspension. On 1 March 2016 first auditor Laurent Jans proposed to apply the special procedure under art. 11/3 of the Regent's Decree of 23 August 1948 — presumed abandonment. On 8 March 2016 the registry informed Wanty that the chamber would record abandonment unless it requested a hearing within 15 days. Wanty did nothing — no request to continue the procedure within 30 days of notification of the judgment, no request to be heard within 15 days of the registry's letter. Under art. 17, §7 of the coordinated laws on the Council of State, abandonment is then legally presumed. The Council records the abandonment of the action. Wanty is ordered to pay 700 euros in procedural costs to the municipality, plus 200 of the 350 euros in other costs (Aertssen bears 150 euros). The municipality's grounds for declaring Wanty's bid irregular — which the Council had already not considered serious in the suspension judgment — therefore stand without any further substantive ruling.
Why does this matter?
Two distinct lessons for anyone bidding on works contracts. The first is substantive: when your prices are queried, it is not enough to answer 'this is the price my subcontractor charges me'. Art. 21 of the RD of 15 July 2011 requires you, as main bidder, to show that the price actually covers your costs — including your margin, organisation, risks and overhead. A pass-through argument does not work: it shifts the justification onto someone who is not a contracting party. The municipality concluded that the bid was irregular, and the Council saw no serious plea to suspend that conclusion. The second lesson is procedural but equally costly: after a rejected suspension, a 30-day clock starts. If you do not file a 'request to continue the procedure' within that period, you are deemed to have abandoned the annulment. The registry sends a final warning with a 15-day response window, but missing that too means the action is irretrievably lost. For bid managers and their counsel that is a hard deadline: most attention goes into the suspension, and if it is rejected the temptation is to 'leave it for now' — but you lose not only the suspension, you lose any chance of a later principled annulment.
The lesson
Two separate lessons, do not confuse them. One — when justifying prices in a bid: never write 'my subcontractor charges this' as price justification. Show that the offered price covers your costs + risks + margin, with figures and your own calculation. Your subcontractor's price is an input to your justification, not the justification itself. Two — for anyone in litigation: today already, set a calendar entry 30 days after every rejected suspension judgment with the note 'file request to continue?'. Decide consciously to continue or consciously to abandon, but never by default. If you decide not to continue, that is a choice (and cheaper); if you decide to continue, file a short memorial within the deadline.
Ask yourself
Did you in your last price justification justify any item with 'this is my subcontractor's price'? If yes: rewrite that justification as your own cost calculation. And do you have a pending suspension procedure that could be rejected? Set a reminder for 30 days after the expected ruling date: continue or abandon?
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 →