96 parking spaces against a requirement of 100 is not a substantial irregularity — and a 6.5% architect fee is not abnormal, even when 27% below the runner-up
The Council of State rejects D E Architecten's urgent suspension request against the award to M4 Architecten of a study contract for a local service centre and child-care facility in Sint-Pieters-Leeuw: a bid with 4 parking spaces fewer than required and a fee of 6.5% (against 8.25% for the second-best) is not substantially irregular in this context — and the price examination needs no explicit motivation as long as the contracting authority finds no appearance of abnormality.
What happened?
The Municipality of Sint-Pieters-Leeuw runs a simplified negotiated procedure with publication for a study contract: the design of a local service centre (LDC) and a child-care facility for 36 children on the Wilgenhofsite, with the layout of a public parking for ‘at least 100 cars’ and strategic pedestrian connections. Estimated value: €219,000 ex. VAT, award criteria price (40 points, rule of three on the architect fee) and design (60 points, split between ‘programme fulfilment’ 40 and ‘outdoor layout and overall site vision’ 20). Five bids are submitted. In March 2020, the municipality requests a revised bid (BAFO) due 21 February 2020. On 22 March 2020 the review report proposes awarding to M4 Architecten en Ingenieurs at a fee of 6.5%. D E Architecten — runner-up at 8.25% — scores higher on quality (30/40 + 17/20 = 47/60 for design) but loses on the total score. On 8 June 2020 the college approves the award. D E Architecten files an urgent suspension based on five grievances: M4's bid was substantially irregular (no water-management vision as required, only 96 parking spaces); the design-criterion motivation does not match the score gap; M4 enjoyed advance information (a soil survey drafted by a company previously merged with M4); the bid validity period had expired; and the chief police commissioner was wrongly present at the college meeting. The Council rejects all five. On water management: M4 did include a vision (permeable materials, green roof), albeit less developed than competitors — which translated into a lower score on the second sub-criterion. Since the specifications set no minimum requirements for that vision, less developed cannot equal substantially irregular. On the 96 parking spaces: ‘at least 100’ was not stated on pain of nullity. A 4% deviation, and D E Architecten fails to show that the deviation gave M4 a competitive advantage or that the lower scoring of its own design (due to a semi-sunken parking with pillars) was a consequence of strictly meeting the requirement. On motivation: the Council does not redo the evaluation — if the verbal motivation and scores are not manifestly inconsistent, no problem. On advance information: the soil survey was sent to all bidders one month before the deadline, D E Architecten did not request more time, and its design scored higher on quality anyway — no unequal treatment. On the validity period: a request for a BAFO restarts the 180-day period from the BAFO submission date (21 February 2020), so M4 was still bound on 8 June 2020. On the police commissioner's presence: ‘not public’ does not mean members-only — the college may invite experts for advice (here on traffic safety). A key passage: D E Architecten noted that M4's 6.5% fee was 27% below its own 8.25%, and the review report literally said ‘large price gap on the architect fee of the chosen bidder’. According to D E Architecten this was an appearance of abnormality requiring a price justification. The Council disagrees: Article 36 RD Procurement 2017 was not applicable (estimated value below the European threshold), the contracting authority has ‘substantial discretion’, and the ‘large price gap’ was explained in the report by M4's lack of overall vision — not by suspicion of abnormality. Moreover, for intellectual services contracting authorities have wider margins than for works. Suspension dismissed, €700 procedural indemnity to the municipality and €150 procedural levy to the intervening party.
Why does this matter?
For those preparing or evaluating bids, these five grievances together provide a valuable framework. First, on substantial irregularity: a specification requirement only becomes a knock-out if it is expressly stated on pain of nullity or marked as a minimum. ‘At least 100 parking spaces’ in a list of needs is not automatically substantial — a 4% deviation can be accepted with motivation. As a bid manager, this means you may slightly deviate from a nominal requirement when the deviation has no technical impact, but it is safer to ask in advance. As a contracting authority: what you really want to be a knock-out, state it explicitly. Second, on price justification below the European threshold: in a simplified negotiated procedure, Article 36 RD Procurement does not apply and you don't need to request a justification — unless you yourself find the price suspiciously abnormal. A 27% gap with the second bidder is not in itself sufficient for intellectual services. But beware of formulations in your report: ‘large price gap’ can open the door to a later discussion. Third: a new BAFO submission resets the validity period — an often-forgotten effect that undermines ‘award too late’ challenges.
The lesson
If you want to challenge an award for a service contract below the European threshold based on ‘abnormal price’: don't forget the rule of three. For intellectual services the contracting authority has wider margins than for works, and without Article 36 RD Procurement applying, a general price examination without separate motivation suffices. To succeed, show that the contracting authority itself left traces of doubt in its file (a formulation like ‘large price gap’ or ‘unusually low rate’) and did not resolve that doubt. To challenge a bid on a formal deviation (parking, m², units) — first show the requirement was on pain of nullity, then that the deviation gave the bidder a concrete and quantifiable advantage. ‘He didn't comply exactly’ is not enough.
Ask yourself
As a contracting authority confirming an award to a lower bidder in a negotiated procedure below the European threshold without requesting a price justification? Three control questions: (1) does my review report explicitly state the price is not suspiciously abnormal, and why? (2) is ‘large price gap’ in my motivation without explanation (e.g. lower fee = less developed work)? (3) for a revised bid (BAFO), have I correctly counted the new validity period from the BAFO date, not from the original bid? As a bid manager: after an award based on price plus quality with a gap covered by the design criterion — first calculate whether correcting your complaints about the quality assessment can bridge the score gap. If not, your action lacks interest.
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 →