49% under estimate, no price justification requested — a two-page internal memo suffices
Eqos Energie lost to De Witte-Vandecaveye, who bid 27% below the average and 49% below the estimate — without STIB-MIVB requesting a price justification; the Council held that the internal memo analyzing market fluctuations and historical prices was sufficient, even without a formal challenge.
What happened?
MIVB launched in December 2022 a contract for the Koning-DeTrooz-Alsemberg project: foundations for traction poles and construction of overhead-line equipment. Estimated value: 3,500,000 euros. Procedure: simplified negotiated procedure with prior call for competition, price as sole award criterion. Three companies bid. After the Best and Final Offer round, amounts diverged sharply: De Witte-Vandecaveye 1,806,394.15 euros (100/100), Eqos Energie 2,693,430.58 (67.07), Equans Fabricom 2,916,839.39 (61.93). De Witte was 27% below the bid average and 49% below the estimate. The award decision of 18 April 2023 said prices were 'verified' and assessed at 'high peak level' for Eqos and Equans and 'low peak level' for De Witte. Eqos challenged this as jargon, not motivation, and pointed out no price justification was requested from De Witte. During the proceedings MIVB clarified that 'piekniveau' was a poor Dutch translation from French 'niveau haut/bas de la fourchette' — upper or lower end of the range. The Council refused suspension. Key: a confidential internal memorandum dated 3 March 2023 from the overhead-line unit head. It explains that the 3.5 million estimate was based on the average of earlier contracts where few companies bid and high prices were received — and that MIVB had specifically tried to attract new players (by removing the 'experience with urban overhead lines' selection criterion). The gap between estimate and actual bids is explained by 'price fluctuations in the overhead-line market', also observed in earlier procurements. Moreover, De Witte was reminded of the difference between urban overhead lines and railway equipment, and confirmed it had submitted its bid 'in full knowledge'. Six earlier award decisions between 2016 and 2023 substantiate the pattern of large price spreads in this niche. Conclusion: under the general price scrutiny (article 84 of the 2016 Procurement Act + article 43 of the Special Sectors Royal Decree), the contracting authority is not obliged to launch a formal price challenge as soon as it sees big price gaps — it has discretion, especially wider in a negotiated procedure. As long as the administrative file shows the reasons why prices were considered non-abnormal, that is sufficient. No breach of formal motivation: as long as the authority concludes that prices are not abnormal, the reasoning need not appear in full in the award decision itself.
Why does this matter?
This is an important judgment for those who think 'if the winning bid is far below the estimate, a price challenge is automatic'. It is not. A contracting authority may conclude that a price falls within a 'normal range' — even at 49% below estimate — provided it can support its reasoning with market history, market dynamics and a specific question to the bidder about execution conditions. For challenging competitors this means: attacking a low bid requires more than percentage points; you must show that the authority wrongly failed to investigate or that its analysis was manifestly unreasonable.
The lesson
When you lose to a bid 25-50% below estimate or average, first request the complete administrative file — not just the award decision. The reasoning that counts is often in an internal memo, not in the award decision itself. And gather arguments showing that execution at that price is technically or economically impossible (technical impossibility, social legislation, historical market prices) — generic surprise about a price gap is not enough.
Ask yourself
When facing an award decision with a large price gap, request the administrative file. Does it contain an internal memo or note analyzing market context, price history or specific execution conditions? Is it explicitly motivated why the authority believes the winning price is within a normal range? If yes, an objection is hopeless without proof of technical or economic impossibility.
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 →