A price justification rejected in a first procedure cannot be recycled in the next — not even when the price has since been 'adjusted'
The Council of State suspends the award of the urban renewal works in Charleroi (€30.1 million excl. VAT) because the city relied, for a suspiciously high unit price of the winning bid, on a price justification it had itself rejected as unacceptable in an earlier procedure — while the price had since been 'adjusted' without any new inquiry.
What happened?
The City of Charleroi launched in May 2018 a major works contract for urban renewal 'Charleroi District créatif' (FEDER 2014-2020), split into four lots: infrastructure (lot 1), fountains, lifts and high-voltage cabin. In March 2019, Charleroi declared all bids for lot 1 unacceptable — not only because prices globally exceeded the FEDER budget, but also because the price justifications for several abnormally high unit prices were unconvincing. The analysis report explicitly concluded that without acceptable justifications the prices for non-negligible items must be qualified as abnormal, making the bids substantially irregular. For lot 1, Charleroi then started a procédure concurrentielle avec négociation with the two qualified bidders: SM Willemen Infra-Colas and SM Galère-Viabuild2 Sud. After negotiations and a BAFO phase on 5 July 2019 — and two extensions of the validity period — Charleroi decided on 31 March 2020 to award to Galère-Viabuild2 Sud for €30,139,793.80 excl. VAT (€36,469,150.50 incl.). In that new procedure Charleroi had also flagged a suspicion of abnormality for unit price item C.1.11-006.11.1.3 'Bituminous bilayer waterproofing' of Galère-Viabuild2 Sud — covering 6,745 m², not negligible. But instead of requesting a new price justification, Charleroi wrote in its award report: 'We had already requested justifications for this item in the 1st procedure. The justifications matched the specifications. The unit price in the BAFO has already been adjusted compared to the 1st offer. Consequently, we consider the unit price acceptable and normal.' Willemen-Colas sought urgent suspension. Their second ground, first branch, hit precisely this motivation: how can a justification rejected as unacceptable in the first procedure suddenly serve as basis in a second procedure with a changed price? The Council follows. First it sets aside the city's 'no interest' argument: it is irrelevant whether the suspect price is too high or too low — every unverified abnormal price disadvantages the other candidate (a too-high price even increases the winner's chances). Then it dissects the motivation: the analysis report of the first procedure (5 October 2018) explicitly concluded that the unit prices of non-negligible items were abnormal, including this item — and not merely that the overall budget was too high. The city cannot retrofit that conclusion as if it had been only a budget matter. Moreover, the Council notes that an 'adjusted' price in the BAFO phase precisely calls for a new justification matching the new price level — not a repetition of an earlier rejected justification. The motivation amounts to a 'personal assessment, at least vague and lacunar', and shows no effective price examination. The Council finds the ground serious and orders suspension with immediate execution.
Why does this matter?
Anyone bidding in a two-phase procedure (re-tendering after a first failure, or a procédure concurrentielle with BAFO) knows the risk of 'recycled justifications': the contracting authority has explained it before and does not want to do so again. This judgment puts a stop to that. A price justification is tied to a specific price in a specific procedure; it loses validity once that price changes or the procedure is restarted. For competitors of a winning bidder with a deviating unit price this is a strong suspension ground: request the analysis report of the previous procedure and check whether the same item was already flagged then — and whether a new inquiry has now been made. For contracting authorities the message is less comfortable: even if you know the bidder and have examined its price structure before, you must re-question for a new procedure or an adjusted price. 'We've already explained this' does not work.
The lesson
If you lose an award to a competitor whose price justifications were rejected in a previous procedure, immediately request both analysis reports (old and new) and compare: was the same unit price flagged as 'suspect' in both procedures? Did the authority formally request a new price justification in the second procedure? If not, and the motivation merely refers to 'this was already examined in the first procedure' — you have a suspension ground with strong case-law backing.
Ask yourself
Two tests in a re-tendered procedure or a BAFO phase: (1) Did the authority formally request a new justification after the unit price was adjusted? (2) Does the award report contain concrete figures and comparisons — or does it limit itself to statements like 'the price is adjusted' and 'we consider it acceptable and normal'? If that motivation reads as a 'personal assessment' without numerical basis: quote it verbatim in your suspension request.
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 →