Between article 35 and article 36 of the Procurement Royal Decree lies a threshold: an explanation that smoothly passes the general price examination doesn't have to become a formal price justification
The Council of State rejects the extreme-urgency action against the award of an architectural study contract in Boom: a contracting authority that, in the context of the general price-and-cost examination (article 35), receives an explanation it finds convincing — adequately motivated — does not have to launch the heavier procedure of article 36 (formal price justification).
What happened?
The Autonomous Municipal Company Boom Plus issued a competitive procedure with negotiation for an architectural study contract for a new music academy, cultural centre and underground parking for 70 vehicles. The works budget was €10,800,000. Award criteria: price (30 points), general vision (60 points), team quality (10 points). The price consisted of a fee percentage for architecture/stability/techniques/fixed equipment plus three lump sums (acoustics, safety coordination, EPC reporting). Four candidates submitted offers. On 7 December 2022 the contract was initially awarded to CVBA Lava Architecten with 7.90% (total €912,250), while Trans Architectuur offered 9.80% (€1,180,440). Trans filed an extreme-urgency action. On 10 January 2023, Boom Plus withdrew the first decision because the price-and-cost examination was not adequately documented; the Council subsequently rejected the first action for lack of object. Boom Plus then asked Lava on 19 January 2023 for additional clarification under article 35 about the architecture/stability/techniques/fixed equipment fee and the EPC reporting. Lava replied on 25 January with a qualitative explanation (extensive digitisation, efficient internal organisation) and a quantitative one — comparing with six similar realised projects, deriving the required hours and multiplying by its average hourly rate. Based on this, Boom Plus concluded that the prices were not abnormally low and re-awarded to Lava. Trans filed a new extreme-urgency action with one plea in three branches: (1) no genuine price examination took place, (2) even if it did, article 36 (formal justification) should have been applied, (3) certain EPC costs were hidden in other items. The Council ruled that article 35 requires a general price-and-cost examination, and that article 36 is only triggered when prices appear abnormal. Lava's explanation — qualitative and quantitative — makes plausible that its rate is not abnormally low. The fact that Trans scored equally high on 'team quality' (10/10) does not negate that Lava's organisation may produce a more competitive fee. The motivation in the award report is sufficient. For EPC reporting, the specifications themselves provide that certain EPC services occur 'in consultation with architecture and techniques' — there is no evidence of hidden costs. No serious plea. Action rejected.
Why does this matter?
Those challenging an award because the winner's price was low often throw all price-examination ammunition at the table at once: 'there was no examination' and 'a formal justification should have been required'. This ruling sharply distinguishes them. Article 35 is the general price-and-cost examination that must always occur — the authority may seek additional information to understand how a price is built. Article 36 is the heavier regime — written justification, possible rejection — only triggered when prices appear abnormal. The boundary is not a formality: it's a factual assessment by the authority, based on the information gathered.
The lesson
As an authority, build your award report in two layers. First: article 35 — describe what questions you asked, what answers you received, and why you were convinced the prices are not abnormally low. Reproduce the essence of the explanation, not 'the bidder provided clarification'. Second layer — only if needed: motivate explicitly why article 36 was not activated. As a challenger: an action saying merely 'it was too cheap, so article 36 should have applied' is weak. Show concretely which prices appear abnormal, which questions remain unanswered, and why the winner's explanation cannot stand mathematically or commercially.
Ask yourself
If your award report under 'price-and-cost examination' simply states 'a price-and-cost examination was conducted in accordance with article 35' without describing what was asked and what was answered: supplement it. The motivation must reflect the essence of the explanation, not just the existence of the examination.
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 →