Negotiating below the €30k threshold is allowed, but not with one bidder alone — even if that bidder doesn't change its price
Woluwe-Saint-Pierre asked only the French winner whether it would deliver 36 instead of 24 anti-truck barriers at the same unit price, without asking PITAGONE the same — the Council of State suspends, even though the winner kept its price unchanged.
What happened?
In late 2018 the municipality of Woluwe-Saint-Pierre wanted to buy anti-truck barriers for less than €30,000 — a low-value contract under article 92 of the Public Procurement Act of 17 June 2016. Three firms were invited: PITAGONE, MANUTAN and the French SARL ISR INNOVATIONS. PITAGONE and ISR INNOVATIONS submitted offers and both were regular. Then something striking happened: on 4 December 2018 the municipality emailed only ISR INNOVATIONS asking what unit price it would charge for 36 instead of the originally requested 24 barriers. ISR confirmed it would keep the same unit price provided the order was placed in one go before end-2018. On 12 December the college awarded the contract to ISR INNOVATIONS for 36 barriers and 3 boxes for €29,400 excl. VAT — just below the €30,000 threshold. PITAGONE filed an extreme-urgency application on 31 December and argued the municipality had broken equal treatment: had it been asked the same question, it would have lowered its unit price below ISR's. The municipality defended with two arguments: (1) ISR did not lower its price so PITAGONE suffered no harm, and (2) PITAGONE has no proof it would have been cheaper. The Council of State, presided by Nathalie Van Laer, sweeps both defences aside. The principle: even for contracts below €30,000, the principles of equality, non-discrimination, transparency and proportionality apply (articles 3 and 4 of the 17 June 2016 Act). Yes, article 29/1 §7 of the Motivation Act exempts low-value contracts from §§1-6, but the decision must still rest on pertinent and acceptable reasons and meet the formal motivation requirements of the 29 July 1991 Act. In fact the motivation must be more precise, because the authority has more discretion. And then the heart: 'Such a negotiation on price, the only award criterion contemplated by the contracting authority, was not conducted with the applicant.' Procedural equality means all bidders must get the same opportunity to improve their offer — not that the outcome must be identical. The 'ISR did not lower its price, so no advantage' argument fails: nothing proves what PITAGONE would have answered. The 'PITAGONE doesn't prove it would be cheaper' argument turns against the authority: it is precisely the municipality that deprived it of the chance to show it. Suspension ordered — immediate execution. The municipality must either redo the procedure or take a new reasoned award decision in which both bidders get the same question.
Why does this matter?
Many contracting authorities treat contracts below €30,000 as a free zone: light formalities, three quotes is enough, then choose. That is wrong. The threshold limits only the placement rules (Title II) — not the basic principles of public law. Whoever negotiates with one bidder after opening about volume, delivery or price must put the same question to every regular bidder. For bidders: if you later learn that a competitor was offered an adjusted price or volume, that is a strong ground — even if the competitor changed nothing. The Council judges procedural opportunities, not outcomes. For contracting authorities: the €30k threshold is no excuse to skip the difficult question. If you want a larger volume at the same unit price, ask all regular bidders in writing with the same deadline. Otherwise you risk suspension with immediate execution, three weeks before delivery is due to start.
The lesson
If after opening you want to know what a bidder would do at an adjusted volume, delivery date or order modality, ask all of them — not one. Even for low-value contracts. Even if the presumed awardee does not change its price — procedural inequality alone is enough to suspend.
Ask yourself
You have two regular offers for a contract under €30k. You ask the cheapest whether it would deliver a larger volume at the same unit price. It says yes. You award to it for the expanded quantity. Did you put the same question in writing to the other bidder, with the same deadline, and document the answer in the award report? If not: suspension risk, even if the winner kept its price.
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 →