A radiation-shielding block estimated at €800/m³ when it costs €5,000 on the market — two years after the suspension was rejected, the €47.8m Jules Bordet award is annulled
The Council of State annuls the award of the structural-shell lot for the new Jules Bordet Institute to the temporary association CFE-Blaton-Entreprises Louis De Waele (€47.8 million) because the contracting authority accepted a unit price of €1,163/m³ for a radiation-shielding block that the market sells at around €5,000/m³ — the benchmark used (a prior estimate of €800/m³) rested on a misreading of a Veritas quote as if it included 357 invisible tons of lead.
What happened?
On 15 October 2014 the Brussels Hospitals Association-Jules Bordet UMC publishes a notice for the construction of the new Jules Bordet Institute on the Anderlecht university campus, lot 01 'Closed structural shell' — open public adjudication. The specifications under item 01.7.3.1 require radiation-shielding blocks 'V5' with minimum density ρ = 5.0 g/cm³, lead-free to avoid secondary neutron radiation. The summary bill of quantities (drawn up by engineering firm TPF Engineering, part of the project-management consortium) sets supply and installation at €800/m³ for an estimated 337 m³. On 15 December 2014 a bidder asks: 'this quantity seems very difficult, almost impossible to source; the only firm we can find is in the United States; could we offer a concrete-and-lead variant?' The authority replies: the supplier is Veritas (USA); no variants. On 21 January 2015 six bids are submitted. Eraerts/Jan De Nul/Strabag bids €56,272,391.95 excl. VAT, with a unit price of €6,758.79/m³ for the V5 blocks (Veritas quote with a hoped-for 20% rebate). The Galère/CEI De Meyer joint venture offers €7,356/m³. The CFE-Blaton-Entreprises Louis De Waele joint venture bids €47,823,402.11 excl. VAT — €8 million below the applicants, €20 million below the project estimate (~€68m) — with a unit price of €1,163.19/m³ for V5 blocks, six times lower than the competitors. The 16 February 2015 analysis report concludes the bid is regular and proposes the award to CFE-Blaton-De Waele. The board awards on 27 March 2015. Galère/CEI De Meyer challenges in extreme urgency: ruling 231.227 of 18 May 2015 dismisses the suspension — €1,163/m³ is only 45% above the €800/m³ estimate, so not 'manifestly abnormally low' UNLESS the estimate itself is tainted by manifest error of assessment. Eraerts-Jan De Nul-Strabag in parallel files an annulment action. The central question shifts: is the €800/m³ estimate itself a manifest error of assessment? To defend it the contracting authority produces (during the proceedings, in a note dated 8 May 2015 — after the award) a TPF calculation: the Veritas quote of 10 October 2011 was for a global price of US$3,820,500; deducting 357 tons of lead at €4.90/kg (€1,749,300, or 65% of the total price), the remaining unit price for VeriShield blocks alone falls between €700 and €1,060/m³ — making the €800/m³ estimate coherent. But: ruling 237.345 of 10 February 2017 reopens the debates, because the note was produced at a stage where the applicants could no longer debate it. On reopening, the applicants demonstrate the following: the Veritas quote explicitly states 'Shielding design is based on using all VeriShield V250'; it nowhere mentions the supply of lead; it describes the logistics phase as delivery of VeriShield pallets, not lead pallets; a Veritas email of 19 May 2016 confirms: 'the $3.8m proposal included the appropriate amount of shielding in the roof BUT utilizing our VeriShield product. The solid lead is an option, but is about double in price'; a 26 May 2016 email specifies volumes: 400 m³ in walls + 500 m³ in ceilings = 900 m³ VeriShield V250 blocks, no lead. The contracting authority even acknowledges in a 14 November 2016 email that 'the quote contains nothing about lead'. Conclusion: removing the fictional 357 tons of lead, the unit price 'reconstructed' from the Veritas quote is around €5,257.54/m³ — five times the €800/m³ estimate and consistent with the other bidders' prices (€6,758.79 and €7,356). The Council of State then applies Article 21, §§ 1 and 3 of the Royal Decree of 15 July 2011: three 'particular circumstances' made price verification mandatory — (1) the project author had acknowledged the difficulty of the estimate, (2) the Veritas quote left questions open (a site visit was requested), (3) a huge gap between the estimate (€800/m³) and the average of the bids (€4,813/m³). Under those circumstances the contracting authority could not, without manifest error of assessment, find that €1,163/m³ did not appear abnormally low and dispense with asking the contractor for justification. The award decision of 27 March 2015 is annulled. Procedural indemnity €700 + €600 other costs at the contracting authority's expense.
Why does this matter?
This ruling makes case law on three practical points. First: a manifestly wrong prior estimate is in principle not a direct ground of complaint against an award — Article 21 targets price verification, not estimation. But when that estimate is the SOLE benchmark used to conclude that a price is not abnormally low, the error in the estimate contaminates the verification and tips the decision into manifest error of assessment. Second: the Council lists three 'particular circumstances' that compel the contracting authority to question the contractor despite apparent coherence with the prior estimate — (a) the project author acknowledged the difficulty of the assessment, (b) the source of the estimate left questions open, (c) significant gap between estimate and average of bids. When those three are all present, the decision NOT to ask for justification is itself open to annulment. Third: the practice of producing during the procedure an explanatory note dated AFTER the contested decision is risky. The reopening of debates ordered by the Council in this case shows that a contracting authority cannot reconstruct its reasoning afterwards and obtain adversarial confirmation without giving the applicants the opportunity to debate it. For bid managers: if you offer a price significantly above a competitor's on a single-supplier item, ask yourself whether the contracting authority's prior estimate was correctly calibrated — and explicitly invoke the 'three particular circumstances' in your appeal. For contracting authorities: when the gap between your estimate and the average of bids exceeds a factor of 5, that is a signal to dig deeper, not to proceed.
The lesson
If you are a contracting authority and one of your prior estimates is based on dismantling a supplier's quote, document each assumption of that dismantling explicitly BEFORE the award decision — an explanatory note produced afterwards will not save the decision. If the gap between your estimate and the average of the bids exceeds a factor of 5 on an item, you MUST question the contractor under Article 21 (today Article 35 of the Royal Decree of 18 April 2017), even if its price is above your own estimate. If you are an unsuccessful bidder, do not just attack the contractor's price: attack the contracting authority's ESTIMATE itself when it appears absurd compared with the market — the chain of errors (wrong estimate → absent verification → reasoned decision without request for justification) is what opens the door to annulment, not the price gap alone.
Ask yourself
If you are a contracting authority: is your prior estimate more than a factor of 5 below the average of the bids received on a given item? If yes, you MUST question the bidders concerned and document in the analysis report why each bid's price is not considered abnormally low — not in a note added after the award. If you are an unsuccessful bidder: does the contractor offer, on a single- or rare-supplier item, a unit price 5 to 10 times lower than yours? If yes, ask where the contracting authority's prior estimate comes from and reconstruct it — the chain 'manifestly wrong prior estimate + huge gap with the bids + no question to the contractor' brings down the award. And email the unique supplier for written confirmation of the assumptions of the quote that underpinned the estimate: a supplier email tipped this case.
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 →