If you say you verified the prices, you must be able to prove it with documents in your file — otherwise the verification has not been established
The Council of State suspends, for the second time, the same award decision by the Brussels Region for a six-building cleaning contract, because the Region had neither preserved any trace of price verification for Köse Cleaning in its administrative file, nor could explain why an 'exceptional' use of student workers was suddenly accepted as a structural price justification for the winner Jette Clean.
What happened?
In March 2017 the Brussels Region published a tender notice for the cleaning of six buildings of the Service Public Régional de Bruxelles: City Center, Crespel, Régent, Ducale, Brucefo and Delta. Four-year contract with a result obligation. Three award criteria: price (40 points), SLA amount (40 points), and number of hours for routine tasks (20 points). For the third criterion the Region used 13,626 hours per year as the reference value, drawn from the UGBN cleaning industry handbook (Misset 95). Eight bidders submitted offers; four met the qualitative selection criteria. The total prices for the four-year contract, excluding VAT: • Jette Clean: 1,548,837.68 € • Köse Cleaning: 1,598,334.36 € • Misanet: 2,183,903.32 € • GOM: 2,247,477.32 € On 5 July 2017 the Region awarded the contract to Jette Clean. Misanet filed an extreme-urgency suspension. By judgment 238,961 of 21 August 2017 the Council of State suspended that first award, because neither the decision nor the file showed that the Region had concretely verified the prices. The Region withdrew its decision on 27 October 2017. To repair the procedural defect, on 27 November 2017 it sent a letter to Jette Clean asking it to clarify the composition of its price and its method of execution. Jette Clean replied on 11 December 2017 with tables breaking down its prices and an explanation of its working method: use of 'article 60' workers (social employment via the public welfare centres), of student workers during holidays, and the various wage costs per category. The Region considered the explanation acceptable and on 9 February 2018 again awarded the contract to Jette Clean. Misanet challenged the second decision as well. The core of its argument: divide the price for item 1 (routine cleaning) by the number of hours each bidder offers for that item. That gives Jette Clean an implicit hourly rate of 21.07 €, Köse 21.98 €. Both figures are well below the 25.63 € benchmark of the UGBN table for category 1A (wage plus social charges). Misanet's conclusion: social dumping, irregularity, inadequate price control. The Region defended itself with a technical answer: the 'reference number of hours' is not a mandatory minimum, but a basis for the third award criterion. A bidder may offer fewer hours — its score is then capped at ratio 1. The implicit hourly rate Misanet calculates is therefore arithmetically wrong, because it ignores items 2 to 5. Moreover, subsidy schemes such as 'article 60' and the Activa plan allow a bidder's actual wage cost to be lower than the UGBN benchmark. The intervening party Köse Cleaning (classic runner-up) added an important technical element: the figure in the third column of the UGBN table — 25.6272 € for category 1A — is not a statutory minimum but a 'cost price', calculated using a sector average of 104.60% above the base wage of 12.5255 €. The statutory minimum is only that base wage of 12.5255 € per hour (CBA of 20 June 2017, joint committee 121). A bidder using subsidies or alternative wage arrangements can therefore structurally come below the UGBN 'cost price' figure without breaking the law. The Council of State split the case into two parts, with different conclusions for each: 1. As to Köse Cleaning: the administrative file contains no element clarifying Köse's price structure. The Region did not question Köse. The motivation of the award decision merely says 'the prices of Gom, Köse Cleaning and Misanet do not appear abnormally low or high', without any underpinning. The Council: 'in a contract of this type the determination of the price depends to a large extent on personnel costs, which are themselves influenced by various social obligations [...] Such elements, communicated by the bidder or in response to a question from the contracting authority, must necessarily figure in the administrative file.' For Köse those elements are entirely missing. The price verification is therefore not established. 2. As to Jette Clean: the cahier des charges expressly states that 'if exceptionally' the bidder uses student or temporary workers, the bidder must produce evidence that they followed a specific cleaning training. Jette Clean's confidential letter of 11 December 2017 shows however that the structural cost saving with which it justifies its low price is precisely based on the use of students — not on an exception. The motivation of the contested decision does not explain why the Region accepted this departure from a contract condition. Outcome: suspension of the second award decision. Second suspension in a row for the very same contract.
Why does this matter?
This judgment exposes two interlocking shortcomings that recur in countless price-control cases, and that reinforce each other. The first — for Köse — concerns the burden of proof for the contracting authority. It is not enough to write in the motivation that the prices 'do not appear abnormal'. A price verification is a concrete investigation, and that investigation must leave traces in the administrative file. Concretely: a question, a written answer, a table, a calculation. Without those traces a court can only find that the investigation has not been proven — and the award falls. For authorities working with services where personnel costs dominate (cleaning, security, catering, maintenance), this is a hard rule: the price structure of every seriously suspect bidder must sit in writing in the file. The second — for Jette Clean — concerns the coherence between cahier des charges and accepted justifications. A clause that says a working method must remain 'exceptional' cannot suddenly be deployed structurally to support a low price. It is a form of inconsistency that touches the equality principle: other bidders who read the clause strictly and therefore priced higher are disadvantaged if the winner is later allowed to interpret it more loosely. For bid managers a third, more strategic insight. When you doubt whether a competing offer has really been examined, do not look only at the motivation of the award decision — that is easy to dress up. Request access to the administrative file in any litigation and look at what is actually inside. If the contracting authority cannot show the structure of the winning price, your suspension argument is serious.
The lesson
If you are a contracting authority with a contract where personnel costs dominate — cleaning, security, catering, maintenance, park management — then: at every doubt about a low price, ask in writing for an explanation, and ensure that your question, the bidder's answer, and your own analysis all sit in the administrative file. Does the bidder satisfy you with a contract exception (article 60, students, subsidised personnel)? Then check whether that exception may, under your own contract terms, really be applied structurally, and motivate explicitly how you respect your own contract condition. And finally: if you award again to the same bidder after a first suspension, know that the Council of State examines your new decision under a microscope — repair is not done by writing that you 'looked at the prices', but by producing all the documents showing that you really did.
Ask yourself
A competitor wins the contract at a price about 25% below yours. You ask the contracting authority for an explanation and it answers that it 'verified the prices' and that they are 'acceptable'. Ask then for access to the administrative file. Do you find: a written question to the winner, a detailed answer with price breakdown, the authority's own analysis? Then the verification stands. Do you find: nothing, or only the CSC and the offers? Then there is a serious suspension argument — the price control has not been established.
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 →