You can complain about the absence of a price check even if you submitted the lowest bid — and a comparative price table is not a price check
The Council of State suspends the award to Malysse of a framework contract for the rental and maintenance of workwear for VIVALIA because the administrative file nowhere shows that the contracting authority carried out an effective price check, and rules that even Servitex — the lowest bidder — has standing for this plea.
What happened?
On 22 June 2017 VIVALIA, the Luxembourg intercommunal hospital group, published a tender notice in the Bulletin of Public Procurement: a service contract for the rental and maintenance of workwear and flat linen for its various institutions. Open call for tenders, award criteria: technical aspects 60 points (quality, hygiene, supply security, traceability, management aid, organisational/logistics model), price 40 points. Four bidders submitted offers: Servitex (applicant), Malysse, Cleanlease and Pierrette-T.B.A. (Elis). Global prices excl. VAT ranged from EUR 4,124,363.20 (lowest) to EUR 6,480,442.36 (highest) — a difference of more than 2.3 million euros over a four-year contract. On 20 March 2018 VIVALIA awarded the contract to variant 4 of Malysse's bid. Notification to Servitex on 30 April 2018. On 14 May 2018 Servitex turned to the Council in extreme urgency. In its second plea, Servitex complained that neither the contested decision nor its annexes show that VIVALIA had proceeded to a price check — an obligation flowing from Article 21 of the 2011 placement Royal Decree (applicable to this contract). VIVALIA first raised an inadmissibility exception: Servitex itself is the lowest bidder. How can it complain about the absence of a price check? It does not invoke any 'abnormally low price' of Malysse. And couldn't the same plea be made about its own bid? The Council parried sharply. The absence of a price check 'causes grievance' to Servitex for two reasons. First: nothing shows that the bids ranked higher than Servitex's would not have been declared irregular if VIVALIA had carried out a price check. The fact that Servitex offered the lowest global price says nothing about unit prices or about the outcome a check might have produced. Second: Servitex can hardly be reproached for not engaging more precisely with the bids of its competitors, since VIVALIA had marked precisely those bids and the comparative price table as confidential and had not made them available. On the merits. Article 21, §1 of the 2011 placement RD provides: 'The contracting authority shall carry out a price check of the bids submitted.' Not optional, not a possibility — an obligation. The Council reiterates: the contracting authority must verify prices ex officio, and that check must enable it to ascertain that the price proposed can guarantee execution in conformity with the contract documents. VIVALIA defended itself with two arguments. First: there is a comparative table of all unit prices of the bidders in the file (item 13). According to VIVALIA, this proves a price check took place. Second argument: the award decision explicitly states that 'in order to compare the bids correctly, item 1.1.14 (flat linen part) was removed from the total of the bids of bidders who had not removed it after the registered letter'. That too should prove a price check. The Council rejected both arguments crystal-clearly. A comparative table of all unit prices 'in no way shows that the contracting authority actually carried out a price check of the items mentioned in it'. The table at most allows verifying that no item was omitted and that no arithmetic error was made — but 'in no way allows finding that the contracting authority verified the prices thus announced, and that while important differences may appear for some items'. The mention of item 1.1.14 concerns only the way global prices were compared for awarding points on the second award criterion. That is not a prior price check — it is a comparison method. The Council added that the global price spread between the bids (EUR 4.1 to 6.5 million over four years) in itself indicates significant differences, both globally and on unit prices, and that 'it was for the contracting authority to verify these prices and their possibly seemingly abnormally low or high character'. Core ruling: 'The administrative file contains no element that would attest to the effectiveness of that price check, and that while, faced with sometimes important gaps between the prices of several bids, the defendant party could not verify the prices and conclude on their normality without proceeding to investigations of which the file would necessarily have had to give an account.' Plea serious. Balance of interests: VIVALIA brought no counterweight, the Council saw none. Suspension granted.
Why does this matter?
This judgment is doubly valuable for bidders. First: you can complain about the absence of a price check even if you submitted the lowest price. 'Standing' for this plea is independent of the direction of any possible irregularity. The reasoning: a proper price check could have led to the higher-ranked bids being declared irregular — and even your own bid if it were abnormally low — which in either case would have led to a re-ranking. Remember this judgment for situations where you finish second or third and your competitors bid suspiciously high or suspiciously low. Second: the Council explains crystal-clearly what a price check is NOT. A comparative price table is not a price check. A method for comparing global prices to award points for the criterion 'price' is not a price check. A contracting authority must conduct investigations — ask questions, examine items with large deviations, request justifications where appropriate — and those investigations must leave traces in the file. For contracting authorities this means: add to your award file a separate document explicitly called 'price check' or used as such. Mention at minimum: the items where differences between bids stood out, how you assessed them, and your conclusion. An Excel table of all unit prices side by side is a preparatory aid — but not the price check itself. Report what you concluded from the table. For contracts above the 15% threshold (mandatory justification) this applies a fortiori. But even below that threshold, a demonstrable price check is mandatory — only the demand for a justification is then not. Another lesson: the fact that VIVALIA had labelled the bids and the price table as confidential also deprived Servitex of the possibility to engage more concretely with the specific items of its competitors. The Council does not hold this against the applicant. This is an important point for bidders attacking on the basis of what they cannot see.
The lesson
As a contracting authority: document your price check. Make it clear in your award report (or in a separate document in the file) that you actually verified the prices — which items you examined, which differences you noted, how you assessed them, and your conclusion. An Excel table with all unit prices side by side is an aid for the check, but it does not prove the check. Treat the price check as a separate administrative act that leaves its own traces. As a bidder wishing to challenge: systematically request the full administrative file. Look for a document that documents the actual price check — not just a comparative table. If you don't find one, that is a strong plea, even if you came first or second.
Ask yourself
You're a contracting authority and need to approve an award report. Does the file — not only the award decision — contain a document that explicitly shows you carried out a price check? Does that document describe which items with large differences you examined and what conclusions you drew? Or do you only have a comparative price table? In the second case: add a separate price-check motivation before you award.
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 →