A price 25% below the average survives — and the winner can still ask for an extra €100,000 once the bid commitment period expires
The Council of State rejects an extreme-urgency action against the award of the Bruges artificial-turf contract to Lesuco: a total price 25% below the average can be justified by 'market leadership, turnover and expertise', and when the bid commitment period expires, the winner may request price increases due to market conditions without the other bidders getting a chance to revise their bids.
What happened?
In late 2021 the City of Bruges launches an open procedure for the renewal of the artificial-turf pitch of the youth football club in Sint-Andries. Sole award criterion: price. Five companies submit bids. On 28 April 2022 the city asks four bidders, including Lesuco and Sportinfrabouw, for price justifications. For Lesuco it concerns five unit prices that deviate strongly from the average: item 16 (excavation) -28.76%, item 42 (concrete paving) -40.08%, item 52 (limestone foundation) -28.58%, item 53 (top-layer aggregate) -18.27%, and item 54 (artificial turf with shockpad and cork infill) -16.26%. Four bids are deemed regular. The ranking (incl. VAT, recalculated): Lesuco €491,443.16, Sportinfrabouw €615,858.54, third bidder €662,693.83, fourth €688,480.27. Lesuco's total price deviates 25.05% from the average. On 13 June 2022 the College awards to Lesuco. Sportinfrabouw files an extreme-urgency action on 6 July 2022. The city withdraws its award on 12 July 2022; by judgment 254,287 of 19 July 2022 the Council declares the first action moot. The city then sends two further price-justification questions to Lesuco (19 July and 13 September 2022). Lesuco answers with supplier offers, an explanation of overhead and profit, and a general 'we are market leader' justification. But things go off the rails. Lesuco's bid commitment period expires on 2 October 2022. On 28 October the city — under article 89 of the Royal Decree on Award 2017 — asks Lesuco whether it maintains its bid until 1 September 2023. On 16 November 2022 Lesuco answers: yes, but not at the same prices. Due to 'exceptional circumstances on the building-material and energy market' (sharp rises in oil, bitumen and gas prices) it can no longer maintain the original prices. For five items it offers new, higher prices. The total price rises by more than €100,000 to €593,559.72 — a 20.78% increase. Importantly, even after this increase Lesuco remains the lowest, since €593,559.72 is still less than €615,858.54 (Sportinfrabouw). In a new review report of 23 December 2022 the city accepts both the price justifications and the price increase. On 20 February 2023 it again awards to Lesuco. Sportinfrabouw files a second extreme-urgency action on 8 March 2023. Two pleas. First plea — the price justification. Sportinfrabouw considers the acceptance unsupported. Lesuco's arguments (market leader, high turnover, equity, experience, expertise) are 'meaningless' and undifferentiated: 'All bidders, certainly the applicant, have extensive experience (...) and can claim very competitive prices.' Why a high equity should lead to a lower price is nowhere explained. Concretely Sportinfrabouw attacks three items: item 16 (under Standard Specifications 250, only 20cm of 'pure topsoil' should exist, not 55cm as Lesuco assumes — the rest must be hauled away at extra cost), item 52 and 53 (it is 'incredible' that Lesuco still has stocks of high-quality crushed stone, and the site in a residential area is poorly accessible for trucks — a 'transit dump' at €2-3 per ton would be needed). The Council of State rejects this criticism. In price-justification under article 36 of the Royal Decree on Award 2017, the contracting authority has assessment latitude; the Council reviews marginally whether the motives are sufficiently externalised, factually and legally robust, the result of careful examination, and within the assessment latitude. Motivation must be assessed as a whole, not item by item. Non-numerical evidence may suffice if sufficiently concrete. Market leadership and high turnover are at first sight acceptable explanations for sharp supplier prices. The fact that Lesuco works with subcontractors with whom the city has 'good experiences' itself can lead to acceptance of those prices as realistic. Experience with major infrastructure works can support cost-saving site management. And the five queried items together represent 68% of the contract — acceptance of those unit prices supports acceptance of the total price. For item 16: an environmental-technical report by an accredited soil expert of 8 October 2021 attached to the specifications classifies the excavated soil 'from the top layer to the maximum depth of excavation' as code 211 (free use). No physical separation is required. The full 3,404 m³ can be excavated and removed in one go. Sportinfrabouw's reliance on Standard Specifications 250 yields to this specific report. For items 52 and 53: Sportinfrabouw's 'self-estimated value' does not outweigh the concrete figures in Lesuco's supplier offers. On site accessibility: the city explains that trucks can reverse onto the site and unload, after which a small excavator distributes the stone. No transit dump needed. The contested decision rests on robust motives. The first plea is not serious. Second plea — article 89 of the Royal Decree on Award 2017. Three complaints. One: the city should not have accepted Lesuco's price increase, because after four years 'pandemic and raw-material problems' are no longer unforeseen circumstances. Two: the city should also have given other bidders a chance to revise, given the 25% price gap. Three: the specifications themselves provide for a price-revision formula that absorbs market increases. The Council recalls the wording of article 89, third and fourth paragraph. The third paragraph allows a modification if 'the bidder justifies the modification on grounds of circumstances that occurred after the deadline date and time for the submission of bids and the modified bid remains the most economically advantageous'. Crucial: the provision does NOT speak of 'unforeseen' circumstances, only of post-deadline circumstances. Lesuco attaches updated supplier offers showing price rises between spring and autumn 2022. The modification falls within the third paragraph. The fourth paragraph specifies when other bidders are contacted — namely if 'the bidder concerned does not agree to maintain his bid or the requested modification is not justified or the modified bid is no longer the most economically advantageous'. None of these three hypotheses applies here. The city was therefore entitled to contact Lesuco only. Sportinfrabouw argues for a broader scope based on equality and fair competition, but does not explain why those principles compel expansion. Nor does the Council see why: 'The original bids were compared with each other, and that comparison led to a ranking. It is during the assessment of the bids that the principles of fair competition and equality must be respected. Once the ranking is fixed, nothing seems to prevent the consequences of the expiry of the bid commitment period from being a matter between the contracting authority and, in principle, the first-ranked bidder.' The second plea is not serious. Action rejected. Sportinfrabouw ordered to pay €200 docket fee, €24 contribution and €770 procedural indemnity to the City of Bruges.
Why does this matter?
Two distinct lessons in one judgment. For competitors challenging an award because the winner offered abnormally low prices: 'it is incredible' is not a serious plea. The Council weighs concrete figures (supplier offers, technical fiches, environmental reports) more heavily than your self-estimated values. And non-numerical justifications — market leadership, turnover, equity, experience, reliable suppliers with whom the contracting authority has good experiences — can suffice, even at 25% below average. For those experiencing the winner's substantial price increase after the bid commitment period: that lies in article 89 of the Royal Decree on Award 2017, and the wording speaks of 'circumstances that occurred after the deadline' — not 'unforeseen' circumstances. 2022 market turbulence (building-material and energy crisis) qualifies. And if the modified bid remains the most economically advantageous, the other bidders do NOT get a chance to revise. Bid-commitment-period expiry is a two-sided affair: contracting authority versus winner.
The lesson
Before challenging an award based on apparently abnormal prices: build your plea around concrete counter-figures, not 'incredibility' arguments. A contracting authority may accept non-numerical explanations if they are concretely attributable to the bidder. What look like 'general' statements (market leader, high turnover, experience) can justify a price 25% below average, especially when those elements are verifiable (turnover figures, equity, prior projects with the same authority). For situations involving expiring bid commitment periods: article 89 of the Royal Decree on Award 2017 allows a price increase from the first-ranked bidder — even by more than €100,000 — as long as (a) the increase is justified by post-deadline circumstances ('unforeseeable' is NOT required!), and (b) the modified bid remains the most economically advantageous. Other bidders do NOT automatically get a chance to revise, even with large price gaps between rankings.
Ask yourself
Ask yourself whether your plea against an 'abnormal price' of a competitor amounts to more than a suspicion. Do you have a specific specification element where you can demonstrate that the winner's figures are factually wrong? Do you have access to an independent technical report (such as an environmental report or material certification) that contradicts the winner's assumptions? Or only your own calculation? In the latter case your plea is prima facie not serious. And second check: if a bid commitment period has expired and the contracting authority is negotiating only with the first-ranked bidder, do not raise an equality plea if the modified bid remains the most economically advantageous — that plea is doomed.
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