One abnormal unit price knocks your whole bid out of the race — even if your total amount looks competitive
The Council of State rejects De Vriese's urgent suspension request against the award of bicycle-path maintenance in Ostend to Adiel Maes (€635,072.36): bidders who limit their price justification to a breakdown of activities, or to a reference to their subcontractor's offer, risk having their bid declared irregular on a single item — losing the entire contract.
What happened?
The Flemish Region launched an open procedure in August 2019 for structural maintenance of bicycle paths in district 315 Ostend, to be awarded as a one-year framework agreement based on lowest price (specifications 1M3D8H/19/08). On 30 September 2019, seven bids were opened, including those of De Vriese Raf and Adiel Maes. After qualitative selection, De Vriese ranked first, Adiel Maes second. During price verification, the contracting authority decided to request justifications from all bidders for items 30, 58 and 61. For De Vriese, item 13 was added. The thresholds: items with a unit price more than 30% below average or more than 50% above, with at least 1% share of the total. The ATO advisory unit added comparisons with a 'trimmed average' (excluding outliers) and a median database — which led to Adiel Maes being further questioned on items 7 and 9. De Vriese's response for item 13 split the price into three activities (excavation, profiling, disposal) without explaining the cost components for labour, material and equipment. For item 61 (two-layer black slem) De Vriese referred to a subcontractor offer (Gravaubel) — based on 'one-phase execution' and only valid for minimum 90% billing. The contracting authority declared the bid irregular: the justification for item 13 was 'particularly summary' (no cost components) and for item 61 the subcontractor's premise was unrealistic (one-phase execution does not fit a framework agreement with spread orders, and preparatory works such as removing the existing slem layer were not included). On 20 April 2020 the contract was awarded to Adiel Maes for €635,072.36 incl. VAT. De Vriese sought urgent suspension on four grounds: the letter of 10 October 2019 was actually a 'first phase' inquiry (Art. 35 RD Procurement) rather than a price justification (Art. 36 §2); there was no evidence of a thorough prior price examination; the prices were not abnormal; and equal treatment was breached because Adiel Maes was also allowed to refer to its subcontractor. The Council of State rejects all grievances. The letter expressly referred to Article 36 §2 — De Vriese could not reasonably doubt this was a justification of suspected abnormal prices. The administrative file shows the contracting authority made a thorough comparison with the estimate, average, 'trimmed' average, median database and current prices. The contracting authority has substantial discretion; its grounds are sufficient. Justifying a price by referring to a (non-detailed) subcontractor offer is inadequate — whereas Adiel Maes did explain direct costs, hourly rate, equipment, dumping costs and built-in efficiency, and used the subcontractor offer only to support one element (HRMP rubble processing). A crucial finding: a bid is declared irregular as soon as the unit price of just one non-negligible item appears abnormal — the total bid amount need not appear abnormal. Moreover, Article 36 §2 last paragraph (option to re-question) is an option for the authority, not an obligation. Bidders who deliver a flawed justification do not have to be 'guided' towards a second attempt. Suspension rejected; costs for De Vriese.
Why does this matter?
This judgment draws two clear lines for those preparing public bids. First: the threshold at which a unit price kills your bid is low. One item that exceeds 1% of the contract and dips more than 30% below average can suffice — even if your total amount is perfectly competitive. Second: a price justification is not a formality confirming a price exists. It is a substantiated explanation of how that price is built up. A breakdown of activities is not a justification; nor is referring to 'this is what our subcontractor gave us'. The contracting authority has the right — not the duty — to follow up, and will not always exercise that discretion in your favour.
The lesson
When preparing a price justification, do not think in terms of 'what we sold' but 'what it costs us'. Break each item down into labour (hourly rate × time), material (unit price × quantity), equipment (efficiency × daily rate), any subcontracting, and your overhead margin. For each subcontractor offer, also state its assumptions (phased execution? preparatory works? minimum quantities?) so the authority can see the price covers all specifications. And never count on getting a second chance — it exists legally, but the authority is not obliged to coach you.
Ask yourself
Did you receive a letter referencing Article 36 §2 of the Royal Decree of 18/04/2017? Then this is a price justification (phase 2), not a general information request (phase 1). For each requested item, check: have I listed every cost component separately (labour, material, equipment, subcontracting, overhead)? Have I explained for each subcontractor offer what it assumes (execution method, quantity margins, preparatory works)? If any answer is 'no', you face a real risk of being declared irregular on that single item.
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 →