An irregular bidder gets only the extract on its own exclusion – not the award decision behind the winner
Heyrman-De Roeck is excluded for an unaccepted price justification and wants to scrutinise the price justification of the winner – who won with a price 100,000 euros higher – but the Council of State explains that the law of 17 June 2013 only entitles an irregular bidder to an extract setting out the grounds for its own exclusion, and that scrutiny of abnormally HIGH prices may anyway be more lenient than scrutiny of abnormally LOW prices.
What happened?
The Coast division of the Maritime Services and Coast Agency of the Flemish Region launches a tender on 30 July 2018 for the 'Renewal of the wooden dune crossing and retaining wall in Bredene' – open procedure, price as the sole award criterion. On 12 September 2018, seven bids are opened, including that of Heyrman-De Roeck. The award report concludes that the bid of NV Van Huele Gebroeders is the ONLY regular bid and therefore the most economically advantageous; Heyrman-De Roeck's bid is found irregular because its price justification is not accepted. On 18 December 2018, the Flemish Minister for Mobility, Public Works, Flemish Periphery, Tourism and Animal Welfare awards the contract to Van Huele for 311,089.09 euros. By registered letter of 17 January 2019, Heyrman-De Roeck receives only an EXTRACT of the award decision: the full assessment of its own bid, plus on the winner only this conclusion – 'On the basis of the price justification provided by Van Huele Gebroeders, no significant elements are identified pointing to abnormal price formation. The bid of Van Huele Gebroeders is therefore considered normal from a price-technical perspective.' Heyrman-De Roeck files an extreme-urgency application on 1 February 2019. Single plea: the motivation regarding Van Huele's price justification breaches the formal duty to state reasons (arts 2-3 of the law of 29 July 1991), art. 5, 9° of the law of 17 June 2013, and the principles of due care and equal treatment. It cannot verify whether the Flemish Region assessed its own price justification as strictly as that of the winner. What Heyrman-De Roeck did NOT know when filing: the full award report contains far more extensive reasoning. Van Huele bid the THIRD HIGHEST price – about 100,000 euros HIGHER than Heyrman-De Roeck. ATO scrutinised Van Huele's price justification (overhead and profit margin, deployment of labour and equipment, supply of materials, justification for the six queried items); for each of those items, the report states why the unit price is acceptable. The Council of State (Chamber President Dierk Verbiest) draws a key distinction: with Van Huele the scrutiny essentially concerned abnormally HIGH prices, with Heyrman-De Roeck abnormally LOW prices. These are 'fundamentally different examinations'. With abnormally low prices the contracting authority asks whether the bidder is not 'merely undercutting its competitors' with the risk of poor performance. With abnormally high prices the question is whether the contracting authority will not pay 'substantially above the market price' – and here in principle a more LENIENT attitude towards accepting price justifications is permitted, 'all the more because the question of equality among bidders then carries less weight'. The principles applicable to scrutiny of abnormally low prices may not be 'transposed without more' to scrutiny of abnormally high prices. On the notification complaint, the crucial distinction follows from art. 8, §1 of the law of 17 June 2013: 'to each bidder whose bid has been found irregular or non-compliant' only 'an extract of the reasoned decision' is communicated (sub-paragraph 1, 2°), while 'to each bidder whose bid was not selected and to the selected bidder' the full reasoned decision is communicated (sub-paragraph 1, 3°). Heyrman-De Roeck, as an irregular bidder, can rely only on 2°, not on 3°. Furthermore, defects in the NOTIFICATION do not affect the lawfulness of the decision itself: formal reasoning and notification are distinct concepts. Heyrman-De Roeck also never asked, before filing the application, for access to the full award decision. Finally, at the hearing it does not contest the confidential treatment of the full award report, nor does it contest the grounds for its own irregularity finding. Application rejected. Heyrman-De Roeck pays 200 euros roll fee, 20 euros contribution and 700 euros procedural indemnity to the Flemish Region.
Why does this matter?
Two mechanisms that are often misjudged in practice. One: the moment your bid is excluded as irregular, you fall back to a minimal information position. You receive the extract on your own exclusion, and nothing more about the winner than the dry conclusion that its price was deemed acceptable. To go further, you must request access to the full award decision in writing BEFORE filing your application – and even then you may run into the organic confidentiality regime. Two: the distinction between scrutiny of abnormally low and abnormally high prices. The contracting authority that dismisses your bid as too low can at the same time be more lenient towards a competitor pricing too high. That seems asymmetric, but the Council provides a logic: bidding too low entails performance risks, bidding too high entails public budget risks – but those are risks the authority can knowingly accept, and where equality between bidders is less central. The difference that here turns an irregularity into a fait accompli: bidding 100,000 euros higher and still winning, because it is mainly a question of whether the authority is willing to pay it.
The lesson
If you suspect your bid will be declared irregular, ask in writing for access to the award decision and the full award report BEFORE the award decision is taken – do not wait for the extract, as you will then be too late to play this card effectively in extreme urgency. And if you want to challenge a competitor's price justification: first check whether that competitor priced HIGHER than you. Scrutiny of abnormally high prices may be more lenient than scrutiny of abnormally low prices, and this knocks out many reasoning-based pleas.
Ask yourself
On every bid with a price justification: have I asked in writing for access to the full decision before the award decision was taken, in case my bid is declared irregular? And if I am now contesting an award because the winner is more expensive: can I show that the contracting authority did not scrutinise that higher price carefully – or am I running into the rule that 'leniency is permitted for abnormally high'?
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 →