A price examination that says 'normal' in the award decision and just repeats the same sentence elsewhere in the file is not a price examination
The Council of State suspends the award of the Fedasil meal-catering contract to Aramark because the Federal Public Service Internal Affairs only states in the award decision that the prices are 'normal' and merely repeats that statement verbatim in the technical analyses — while Aramark bid more than 15% below the estimate for lot 2 and the Council finds no concrete trace of an actual general price examination in the file.
What happened?
The Federal Public Service Internal Affairs launched on behalf of Fedasil a contract for the preparation, packaging, delivery and distribution of meals at two reception centres: lot 1 — former Civil Protection barracks Jabbeke (estimate 2,250,000 € excl. VAT), lot 2 — military barracks Glons (estimate 4,500,000 € excl. VAT). Simplified negotiated procedure with prior publicity, European publication, price as sole award criterion. Document B point 1.1.1 lays down as essential requirement that 'the preparation of the various meals as well as the packaging in individual portions, in disposable packaging, takes place at the service provider's facilities'. Two bidders: Umami Catering and Aramark. Umami proposed to 'regenerate' bulk meals on site (Glons: installation of kitchen units and refrigerated containers; Jabbeke: use of existing, partly non-compliant kitchen infrastructure). The FPS asked for clarifications on 25 January 2023, particularly on costs of electricity, water and drainage connections for the kitchen units. Umami answered that 'investment costs' are included in its lump-sum items — but provided no budget for energy consumption, water distribution and bringing the inoperative automatic kitchen-fire extinguishing system in Jabbeke up to standard. On 1 March 2023 the minister declared both Umami offers substantially irregular (art. 76 §1 Royal Decree placement) for incomparability: the additional costs are identified but not quantifiable. Aramark received lot 1 for 2,150,283.80 € (incl. VAT) and lot 2 for 3,803,491.88 € (incl. VAT). The price-examination motivation in the award decisions reads in full: 'in accordance with article 84 of the law and article 35 of the Royal Decree, the contracting authority conducted a price examination of the offer of the selected bidder. This examination showed that the prices offered by Aramark are normal'. Umami filed an extreme-urgency action. The first plea (on the irregularity declaration itself) is not serious — the regeneration solution generates uncosted additional charges and goes beyond mere bulk distribution; the Council notes that Aramark too involved a form of bulk distribution but without on-site preparation. The second branch (no opportunity to regularise) likewise fails: art. 76 §4 — applicable above the European threshold — only allows regularisation of a substantial irregularity if the procurement documents so provide, and even then regularisation cannot amount to 'a fully new offer'. But the second plea (deficient price examination) is serious. The Council recalls: a bidder whose offer was declared irregular still has standing if it can be shown that the contract could not lawfully be awarded to anyone. On the merits the Council holds that article 35 of the Royal Decree requires an effective and concrete general price examination; the formal motivation duty does not require the examination to be set out in extenso in the award decision, but the material motivation duty does require it to be traceable in the administrative file. Here the FPS only refers to the technical analyses, which contain exactly the same formula as the award decision. 'No further description of how the examination was conducted is to be found in those analyses'. No other trace in the file. Meanwhile: lot 1 — Aramark 4.43% below the estimate; lot 2 — 15.48% below (incl. VAT — without VAT even more). The Council: 'The administrative file does not appear to make clear why the contracting authority considered that those differences provided no ground to suspect abnormal total prices'. Suspension of both award decisions.
Why does this matter?
This ruling clarifies the exact substance of the 'general price examination' under article 35 of the Royal Decree. Many contracting authorities discharge that duty with a copy-paste line in the award decision — 'we examined and the prices are normal'. The Council makes clear: that does not suffice, even where it concerns the general examination (not the special examination under article 36 that only kicks in for abnormally appearing prices). The motivation does not need to be in the decision itself, but must be traceable somewhere in the file. A formulation that is one-to-one repeated from the award decision is not an examination — it is a tautology. And: the bigger the deviation between estimate and offered price, the heavier the motivation burden. A deviation of more than 15% at price-as-sole-criterion forces the contracting authority to explain concretely why it does not consider that suspicious. For bidders whose own offer was declared irregular: this ruling reaffirms 'standing through the second plea'. If you can show that the price examination on the winner is below par, the entire award can fall — independent of the fate of your own offer.
The lesson
For contracting authorities: leave at least one trace in the administrative file from which an outsider can reconstruct how you conducted the general price examination — which prices you compared (against the estimate, other offers, historical prices), which items you checked per offer, and why you saw no abnormality. One line in the award decision plus the same line in the technical analysis is not an examination but a chant. And know: as soon as the gap between estimate and offered price approaches 15% (especially with price as sole criterion), an explicit additional motivation is no luxury. For bidders: even an irregularly-declared bidder retains standing to challenge the award through a plea showing the contract could not lawfully be awarded to anyone — such as a deficient price examination. And: in your application, always ask for the file documents that substantiate the general price examination. If they don't exist, you have gold.
Ask yourself
Open your administrative file at the place where the general price examination should sit. Do you find more than the sentence 'the prices are normal'? Do you find a comparison with the estimate, with the offers among each other, with previous tenders? Do you find an explanation why a possible >10% deviation between estimate and offered price is not abnormal? If not, your award decision is on shaky ground.
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 →