A price review without a price inquiry: Gaston De Groote fails to suspend the Antwerp road-markings award
Gaston De Groote challenged, under extreme urgency, the award to Meirlaen Markeringen of a framework contract for road markings on the Antwerp motorways, arguing that the strikingly low winning price required a price inquiry; the Council of State dismissed the action because the Roads and Traffic Agency had in fact conducted a thorough price review — comparing estimates, earlier comparable contracts and the MEDIAAN price database — and, within its broad discretion, was not required to find any abnormality.
What happened?
The Roads and Traffic Agency of the Flemish Region placed, through an open procedure, a framework works contract for the ‘supply, application and maintenance of road markings on the motorways in the Antwerp division’ (specifications 1M3D8E/19/12). The contract ran for one year, with at most three one-year extensions (four years in total), and was to be awarded to the most economically advantageous tender on two award criteria: the tender price (50 points) and the quality of the services offered / plan of approach (50 points). After publication on 8 May 2019 in the Bulletin of Awards, three tenders came in. The award report of 27 August 2019 found all tenderers selected and all tenders regular, and ranked them: Meirlaen Markeringen with 87/100 (price 50/50, plan 37/50), Gaston De Groote with 71.74/100 (price 33.24/50, plan 38.50/50) and Trafiroad with 60/100. On 9 September 2019 the Flemish Region awarded the contract to Meirlaen Markeringen for 759,951.50 euros excl. VAT for one maintenance year and 3,039,806.00 euros excl. VAT for four maintenance years; the reasoned award decision was notified to Gaston De Groote on 27 September 2019. In its single plea, Gaston De Groote alleged breach of articles 83 and 84 of the 2016 Public Procurement Act and articles 33 to 37 of the 2017 Royal Decree on placement: given the large price gap with the winner and the difference from the estimate (the specifications set class 5, i.e. an estimate of at least 900,000 euros, pointing to a 18.5% deviation), there was allegedly a manifestly abnormally low price requiring a price inquiry, or at least the authority had not adequately motivated why the prices could count as normal. The Council recalled that a contracting authority enjoys considerable discretion in the price review and that it only marginally checks whether the reasons are proven and the assessment careful. The administrative file showed that the Agency had indeed carried out a thorough price review (point 4.8 of the award report): it compared the total and unit prices of the three tenders with the estimates, which had been drawn up on the basis of earlier comparable contracts in the Puurs, Brecht, Vosselaar, Geel and Antwerp districts and deliberately set higher owing to indexation and the greater complexity of the R1 and R2. The winner was below the estimate, the others above it. For the items weighing more than 5% (items 1, 3, 4 and 5) the Agency examined Meirlaen’s unit prices: item 1 was higher than the estimate (as with the other tenderers), while items 3, 4 and 5 were tested against earlier comparable contracts and against the MEDIAAN price database. The claim that no price review had been conducted thus lacked any factual basis, and the authority could, within its broad discretion, conclude that there were no abnormal prices and hence no need for a price inquiry (article 36, § 1 of the 2017 Royal Decree). The plea was not serious; the Council dismissed the action and ordered Gaston De Groote to pay the costs: a roll fee of 200 euros, a contribution of 20 euros and a procedural indemnity of 700 euros to the Flemish Region.
Why does this matter?
The judgment shows how far a contracting authority’s discretion reaches in the price review, and how limited the Council’s scrutiny is. The mandatory price or cost review (article 84 of the 2016 Act; articles 33 and 35 of the 2017 Royal Decree) is not the same as the price or cost inquiry: that heavier step becomes mandatory only when the review reveals prices that appear abnormally low or high (article 36, § 1). A large price gap between tenderers, or between the lowest price and the estimate, does not in itself prove abnormality — especially where the estimate is not entirely accurate. What counts is whether the authority bases its judgment on duly proven, objective points of comparison. Here those were the estimate, the prices of earlier comparable contracts and a price database. For anyone seeking to challenge an award on the ground of an abnormally low price, the judgment sets the bar sharply: you must show that the price review was absent or careless, not merely that the winner was cheaper.
The lesson
For authorities: actually carry out your mandatory price review and document it with objective, verifiable points of comparison — the estimate, the unit prices of earlier comparable contracts and a price database such as MEDIAAN. That file is your defence when a loser challenges the low winning price. Make sure, moreover, that your estimate is realistic and up to date, because a stale estimate loses its value as a benchmark. For tenderers: a striking price gap is no proof of an abnormally low price. To have an award suspended, show that the price review was absent or manifestly careless; the Council does not substitute its own price assessment for that of the authority. Know too the automatic threshold: for works assessed on price-quality with a price criterion of at least 50%, an inquiry is mandatory for every tender at least 15% below the average of the tenders submitted (article 36, § 1).
Ask yourself
As an authority: have you documented your price review with objective points of comparison (the estimate, unit prices of earlier comparable contracts, a price database)? Do you know when a price inquiry becomes mandatory — including, for works, when a tender is at least 15% below the average of the tenders submitted (article 36, § 1 of the 2017 Royal Decree)? As a tenderer: can you show more than a large price gap? The Council only marginally checks whether the price review was careful, not whether it would itself reach a different price. Is your estimate realistic and current? An outdated or inflated estimate undermines its value as a benchmark.
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 →