A price justification that combines the Bureau des Prix estimate with the requested unit-price justifications suffices, even if the analysis covers less than two thirds of the offer amount
The Council of State rejects the annulment of the award to Colas Belgium for the E411 rehabilitation (€8.89m), because a contracting authority that bases its price examination on a Bureau des Prix estimate combined with reasoned justifications of certain unit prices it queried with the bidder satisfies its examination and motivation duty — even if that analysis covers less than two thirds of the offer amount.
What happened?
On 27 November 2017 SOFICO — the Walloon company for complementary infrastructure financing — awards a works contract to NV Colas Belgium (Agence Sud-Est): the rehabilitation of the E411 motorway between km 49.200 and 56.500, in both directions. Award amount: €8,891,878.46 excl. VAT. Specifications no. CSC 16N64. Applicants: NV Viabuild Sud and NV Viabuild — rejected bidders. Viabuild first files an extreme-urgency suspension. By judgment no. 240.422 of 15 January 2018 the Council of State rejects the suspension and accepts Colas Belgium's intervention. The procedure then continues 'on the merits': an annulment application filed by registered post on 26 January 2018 (postal date, hence within the deadline — the registry's stamp of 30 January 2018 is irrelevant). The single ground breaks into two branches, both about the price justification. First branch: against the reasoning that the Bureau des Prix considered the prices 'normal'. Viabuild argues that they had access to the procurement documents and the Bureau des Prix advice, but 'the Bureau des Prix advice does not mention the other unit prices of Colas' and they have no access to Colas's offer. They can 'logically draw certain conclusions from concrete data' to comment on prices they do not know. The reasoning 'mentions the normality of unit prices', but according to Viabuild this is no distinct motive — the Bureau des Prix based its general estimate precisely and exclusively on (part of) the unit prices. Second branch: against the acceptance of the justifications Colas provided for certain unit prices. Viabuild claims 'the reasoning of the contested act cannot constitute a price justification within the meaning of article 21 § 3 of the Royal Decree of 15 July 2011'. A price based on 'a subcontractor's tariff with a margin' is in their view insufficient. The Council of State, in its merits judgment, takes over the reasoning of suspension judgment 240.422 and confirms it. On the first branch: the Bureau des Prix advice is a valid support for the reasoning. That applicants do not have full visibility on Colas's offer is inherent to the contracting authority's confidentiality obligation. The Bureau's normality conclusion (based on the unit prices it could examine) is no 'circular reasoning' but an independent assessment that stands on its own, even if not exhaustive across all unit prices. On the second branch: the judgment weighs two clarifications by Viabuild. One: 'a justification consisting of a subcontractor's price plus profit is insufficient.' The Council finds this complaint inoperant — the contracting authority did not 'merely' accept the reference to subcontractor prices, but verified (after additional questions) that those prices covered the requested services. Two: 'the reasoning concerns whether the prices cover the requested services and is limited to a simple confirmation of normality.' This too does not as such establish a manifest error of assessment, since applicants invoke no specific circumstances showing the contracting authority simply 'absorbed' Colas's justifications without elementary verification. Conclusion: the reasoning of the contested act is 'sufficient in law'. No manifest error, no breach of the duty of care. Application rejected, €700 procedural compensation plus €400 court fees borne by Viabuild.
Why does this matter?
The judgment is interesting for those wondering how far the motivation duty reaches when accepting a price justification. From practice you know: the contracting authority must request justifications for prices that appear abnormal. The question is what it must do afterwards. Does an acceptance 'after examination' suffice? Does a reference to the Bureau des Prix estimate? Or must the authority motivate every justification line by line to third parties? This judgment offers a useful middle position. What the Council requires is no exhaustive arithmetical justification across all unit prices, but a file showing the contracting authority (1) effectively asked questions where doubt existed, (2) did not absorb the bidder's answers blindly but performed elementary verification that prices cover services, and (3) could rely on an independent external estimate (such as the Bureau des Prix) as a global plausibility check. A reference to subcontractor tariffs is not automatically insufficient, provided combined with that elementary verification. For applicants challenging an award on abnormal prices: showing that the Bureau des Prix advice does not cover all items is not enough. You must invoke specific circumstances — for example clearly inadequate subcontractor tariffs, a pricing structure structurally impossible for the offered services, or a demonstrable lack of elementary verification by the authority. The line between 'superficial' and 'effective' examination is decisive in this file; absent concrete circumstances, the authority gets the benefit of the doubt.
The lesson
If you challenge an award because the price justification appears superficial: build your ground on concrete circumstances. A reference to 'the Bureau des Prix only covers 60% of the offer amount' is insufficient if the authority can show it asked additional questions about the other unit prices and elementarily verified whether the answers cover the services. Show what specifically was not verified or what was clearly untenable — not merely what was not justified.
Ask yourself
When I challenge an award on abnormal prices: do I have (1) a concrete circumstance pointing to clearly untenable prices (e.g. below purchase cost), (2) an indication that the contracting authority simply absorbed the justifications without elementary verification, or (3) a specific item for which even the Bureau des Prix advice seems unacceptable? If none of three: ground will fail.
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 →