'Clustering' unit prices across three related items is allowed — Middelkerke keeps its €685,683 award to Penninck
Norré-Behaegel argued that the winner had priced all the labour into a single item and left the other two empty, but the Council of State accepts 'clustering' of unit prices across related items as long as the contractor backs up the productivity figures with concrete data and invoices.
What happened?
The municipality of Middelkerke launched a public tender in November 2015 for the renovation of three streets — Onderwijsstraat, Camerlinckstraat and Smidsestraat — estimated at €806,313.69 incl. VAT. Bids opened on 22 January 2016. Four contractors bid: NV Penninck (€685,683.04, the lowest), BVBA Norré-Behaegel (€766,278.44), NV Verhelst (€805,565.88) and BVBA Vanlerberghe (€857,329.28). During price examination, Middelkerke flagged four of Penninck's unit prices as potentially abnormally low: item 32 (sewer pipes Ø 400 mm), item 44 (sand fill at 3–4 m depth), item 51 (excess soil disposal) and item 99 (lean concrete substrate). Penninck twice submitted price justifications. These showed that for items 44 and 99 he had only priced transport and materials; all labour — crane and skilled worker — had been booked under item 32. He documented this with supplier invoices, a nearby depot offering free fill sand and a free-use site for excess soil disposal (codes 211). On 15 March 2016 Middelkerke awarded the contract to Penninck. Norré-Behaegel — the second-lowest bidder, €80,000 above — went to the Council of State. They argued the specifications required a price per item, that 'clustering' labour into one item was inconsistent with article 21 §3 of the Royal Decree on Procurement of 15 July 2011, and that the practice opened the door to speculation: by booking labour in a single item, that item's price could spike heavily on additional works. The Council of State dismissed the appeal. A contracting authority enjoys substantial discretion in assessing price justifications, and the file showed that Penninck had backed up his clustering with concrete figures and supporting documents. The three items concerned the same technical component — laying sewer pipes — and the price justification expressly stated that the labour with crane and skilled worker for items 44 and 99 was already booked under item 32. Norré-Behaegel's claim that those works require different machines and different personnel was never concretely substantiated. Nor was a speculation risk: a hypothetical price spike via additional works is not enough. Appeal dismissed; €700 procedural indemnity to Middelkerke.
Why does this matter?
For contractors working on related sewer or roadworks items, this is an important confirmation: you may spread the labour productivity across multiple items if they form one technical unit, provided you explain that in your price justification and back it up with figures and invoices. For competitors the lesson is harder: simply asserting that 'labour wasn't priced' is not enough — you have to show what specific personnel or machines are needed for those items and why the cluster is technically incoherent. For contracting authorities: an award report that motivates the acceptance of clustering by pointing to the technical link between items will hold.
The lesson
If, as a competitor, you want to challenge a price justification in which the winner has 'clustered' work across multiple items, it is not enough to say that one item bears all the productivity. Show concretely which personnel, which machines and which sequencing the other items require, and why those cannot be merged technically with the chosen lead item. Bring concrete evidence for the speculation risk too — a hypothetical price spike via additional works will not do.
Ask yourself
Did you specify in your ground (with item numbers, equipment and manpower) why the clustered items are technically not one unit? Without that detail the contracting authority's reasoning will almost always fall within its discretion.
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 →