You cannot dismiss an offer as 'abnormally priced' when that price, by your own formula, is not abnormal at all
The Council of State holds that SOFICO wrongly declared the offer of Sotraliège (€4.5 million for cleaning storm-water basins in Liège) irregular for 'abnormal price', because the contested unit prices were — by SOFICO's own mathematical criteria — not abnormal at all; but the Council nonetheless refuses suspension because of flooding risk.
What happened?
SOFICO published on 20 January 2022 a public-works contract for the cleaning and repair of storm-water basins on the main Walloon road network, divided into three lots. Lot 3 (Province of Liège) — 14 basins — is the subject of this case. A 'call-off' contract of 12 months, awarded under an open procedure with price as the sole award criterion. Four bidders: TM A2-ABOG, Sotraliège, Envisan and Nelles Frères. SOFICO applied a mathematical test to the four lowest totals: a unit price is 'apparently abnormally low' if it deviates more than 20% from the average of the other offers; abnormally high from 30% deviation upwards. By this criterion, the unit prices of Sotraliège for the four 'non-negligible' items — M1280 E* (cleaning in dry/wet basin), D9465 (waste-soil disposal), D9306* (evacuation of type-B sludge) and D9307* (evacuation of type-A sludge) — were NOT classified as abnormal. Nonetheless, SOFICO requested justification under art. 36 of the Awarding Royal Decree, citing that earlier information was 'not sufficiently precise and complete'. Sotraliège referred for the evacuation prices (D9306* and D9307*) to an offer from its subcontractor Heuze & Roznowski 'for the evacuation of sludge in an authorised processing chain'. SOFICO held that this answer did not demonstrate the authorisation of that processing chain, and concluded that the unit prices for D9306* and D9307* were 'abnormal'. The Sotraliège offer was rejected on 30 September 2022 for substantial irregularity; the contract went to Envisan for €4,474,027.26 excl. VAT. Sotraliège went to the Council of State in October 2022. SOFICO withdrew its decision and adopted a near-identical new award decision on 9 February 2023. Sotraliège went again. The Council dissects the legal architecture minutely. Art. 35 of the Awarding Royal Decree imposes a general price check. Art. 36, §1 imposes a deeper investigation 'as soon as prices appear abnormally low or high' from that check. Art. 36, §3 allows the contracting authority to reject an offer after 'evaluation of the justifications received'. But — and this is the crux — that whole procedure can only start if there is a prima facie abnormality. SOFICO had applied its own mathematical test and that test had said that the prices of Sotraliège were NOT abnormal (confidential piece E in the file). The Council concludes: 'By qualifying as abnormal unit prices that, by its own appraisal criteria, did not require justification under art. 36, since they appeared neither abnormally low nor abnormally high, the reason of the contested decision is wrong in law.' First plea serious. BUT: balance of interests. SOFICO showed that the storm-water basins are essential to flood-risk management in Wallonia, that 60 basins must be renovated as a priority under a plan adopted after the catastrophic floods of summer 2021, and that the 14 basins of lot 3 are part of that priority list. Furthermore, the nesting season starts in March 2023, requiring a derogation from Nature and Forests. The Council holds that the private interest of Sotraliège in obtaining the contract cannot prevail over the flooding risk — suspension refused.
Why does this matter?
This ruling is essential for any contracting authority that uses objective deviation formulas to detect abnormal prices. The message: you cannot use the procedure of art. 36 of the Awarding Royal Decree as a safety net for 'doubtful' prices that your own formula does not flag as abnormal. Once you choose a mathematical threshold (e.g. 'more than 20% deviation from the average'), you are bound by that choice. If you then ask for justifications and find them unsatisfactory, you cannot base an irregularity decision on that — the legal basis (art. 36) was not activated. For bidders examining the reasoning of an irregularity decision: ask (preferably via a confidential piece in the proceedings before the Council of State) for the contracting authority's own calculations. If those show your price did not even look abnormal within the meaning of art. 36, you have a strong case. At the same time, the ruling teaches that even with a serious plea, suspension can be refused on grounds of flooding risk or other weighty public interest — a reminder that the balance of interests (art. 15, paragraph 3 of the law of 17/06/2013) is genuinely an autonomous step.
The lesson
As a contracting authority: choose one method for detecting abnormal prices, apply it consistently, and request justifications only for prices that appear abnormal under your own criteria. If you nonetheless want further explanation for a non-abnormal price, request information under art. 35 (general check) — not via art. 36 (abnormal prices). When rejecting an offer: ensure the reasoning shows that the prima facie test of art. 36 was activated. As a bidder: did you receive a request for justification under art. 36 and you believe your prices do not look abnormal? Ask in writing for the contracting authority to clarify its detection method. And if you are declared irregular: have the reasoning checked — if the contracting authority's own abnormality threshold was not met, the decision is vulnerable.
Ask yourself
Does your reasoning for rejection on grounds of abnormal price contain (a) an explicit application of a pre-set mathematical threshold, and (b) a finding that the contested price exceeds that threshold? If not — your decision is shaky.
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 →