A bid 31% below the average survives price scrutiny thanks to a single 32-page annex
Stadsbader bid 31% below the average for an Infrabel rail works contract — and survived price scrutiny because they spontaneously included a detailed calculation of their ten largest line items, six of which actually proved more expensive than the complaining competitor's.
What happened?
Infrabel ran an open tender to renew the drainage system on rail line 27 between Hove and Mortsel. Four bids came in, ranging from Stadsbader's 2,525,094 euros to Stevens-CFE-Remacom's 4,328,125 euros. Stadsbader's bid lay 31.40% below the average — well above the 15% threshold of article 98 §2 of the Royal Decree on Procurement in special sectors that triggers mandatory price scrutiny. Stadsbader justified its low price with classic arguments: limited subcontracting, concrete plants 'at relatively short distance' (Puurs and Kallo, c. 25 km), group companies Jacops and Deckx, and 'favourable circumstances'. But they also added a 32-page annex spontaneously: a detailed price calculation of their ten largest line items, together representing 50% of the bid, supported by quotes from subcontractors and suppliers. Then a second twist: when the bid validity period had to be extended, Stadsbader requested a 13.21% price increase, which Infrabel also accepted — citing rising labour costs from an order book that had filled up since the opening (Saturday premiums above 40-hour weeks) and higher quotes from subcontractors and suppliers. Betonac-Bam Track took the case to the Council of State. Their criticism was sharp: the price justification was vague and generic, internally contradictory (Stadsbader claimed 'limited subcontracting' but reserved 860,762 euros for subcontractors — more than the 819,947 euros for own labour, equipment and transport), 25 km is not 'nearby', and the detailed calculation only covered 50% of the bid. The XIIth chamber rejected the appeal. The Council emphasized that Infrabel had broad discretionary power and could assess the elements 'in their mutual coherence'. The decisive factor was the 32-page annex. When comparing the ten detailed posts, Stadsbader was actually higher than Betonac-Bam Track on six of them, and on the four lower ones bidders varied widely. The 13.21% price increase was also accepted: an order book that fills up post-opening qualifies as a changed circumstance under article 102.
Why does this matter?
Anyone who writes bids has experienced it: a competitor bids 25-30% lower than you, you're certain it can't be right, and you file a challenge. This judgment shows what a contracting authority is allowed to accept as 'sufficient justification' — and that's more than many challengers hope. For those on the low-bidder side, it provides the blueprint: spontaneously detailing unit prices for the heaviest line items isn't just correct procedure — it's what saves you in court.
The lesson
If your bid in an open tender lands more than 15% below the average, deliver more than general arguments in your price justification. Spontaneously add a detailed calculation of your ten largest line items, with supporting quotes from subcontractors and suppliers. That material lets the contracting authority demonstrate that they have 'seriously examined' your bid — and in appeal proceedings, it is the difference between a judgment that confirms your award and one that suspends it.
Ask yourself
When your bid is accepted after a price inquiry: does the award report reference concrete unit prices or detailed calculations that the contracting authority has examined itself? Or does it merely state that 'the justification was found acceptable'? In the latter case, your award is vulnerable — ask the authority to expand its reasoning before they make a final decision.
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 →