Telenet bids 50% cheaper, Proximus demands a price review — the Council: with two bidders, cheap is not yet abnormal
The Council of State rejects Proximus' extreme-urgency challenge to Belnet's award to Telenet of a 5-year connectivity framework, because a price gap of more than 50% and €5 million does not automatically signal an abnormal price — certainly not with only two bidders and a winner that substantiated its pricing in detail.
What happened?
Belnet, the Belgian telematics research network, tendered a contract for the supply of connectivity services over five years. Lot 2 was awarded to Telenet on 22 December 2022. The gap with Proximus was wide: Telenet was 1.5 to 2.3 times cheaper depending on the scenario, with a nominal gap exceeding €5 million. Proximus filed an extreme-urgency action on 9 January 2023 raising two pleas. First plea: weighting of award criteria — the six qualitative criteria together carried only 10%, the rest going to price. The Council rejects: this is a services contract where works are accessory, many sites are already connected, volumes will fall during execution, and synergies will reduce works further. A low weight for non-price criteria is not manifestly unreasonable. Second plea, three branches. Branches 1-2 (general price review and abnormal total prices): the Council notes that Telenet had submitted a broad price justification on 17 November 2022 covering similar contracts with the same pricing method, performance certificates, and its 'unique position' in the telecom sector (solid solvency, listed status, ties to a large foreign group). With only two bidders, the Council is reluctant to label either as abnormal. Belnet could reasonably conclude the totals were not abnormally low. Internal cabling zero-prices: the specifications allowed them (clarified in Q&A), and the items are 'negligible' under Art. 36 §2(5) KB plaatsing 2017 — average €851.67, less than 0.002% of the maximum estimated contract value, so no price justification was required. Branch 3 (set-up zero-prices for 3- and 5-year contracts): Telenet had spread set-up costs across the monthly fees. The Council confirms this is not prohibited and that Belnet's internal recalculation (e-mails of 17-18 November 2022) had verified that totals remained the same. No subcriteria distinguished set-up from monthly, so comparability is preserved. Neither plea is serious; the action is dismissed.
Why does this matter?
Anyone working on telecom, IT or services frameworks will sooner or later face a pricing schedule with set-up costs at zero or absorbed in monthly fees. This case sets the playbook. For authorities: state expressly in Q&A whether zero prices are allowed, run an internal recalculation to verify totals, and keep the working files in your administrative file. For bidders: a large price gap with a competitor is not in itself an argument that the competitor is abnormal — especially with few bidders; you must point to a specific cost item that lacks substantiation. And know that 'negligible items' under Art. 36 §2(5) KB are a real category — for less than a few per mille of the contract, no price justification is required.
The lesson
A 50% price gap does not make an abnormal price — what counts is whether the authority ran a reasonable price review and proves it in its administrative file. If as a bidder you challenge the award on abnormal-price grounds, focus not on the gap itself but on a specific item where the winner gave no substantiation or where the explanation is plainly untenable. Beware of contracts with few bidders: the Council is then reluctant to label one of two as 'abnormal'.
Ask yourself
As authority: can I show in my administrative file one page of price analysis per item above 0.01% of contract value? Can I demonstrate I recalculated the totals on a standardised basis (e.g. set-up separate vs absorbed)? As bidder: in my plea, can I point to a concrete item the winner left unanswered, rather than only the global price gap?
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 →