An offer 54% below the average still gets awarded — because the 15% rule targets the total price, not every unit price
The Council of State refuses to suspend a Sofico award to Men At Work for €456,120.80 — even though the offer was 54% below the average — because Article 36, §4 of the Procurement Royal Decree only requires verification of the total price and the contracting authority enjoys broad discretion in doing so.
What happened?
On 5 August 2022, Sofico (the Walloon infrastructure financing company) launched an open procedure for selective waste collection on the Liège motorway district. The sole award criterion was price. Five bids came in, ranging from €473,335 (Men At Work) to €1,406,264 (A2). Men At Work's bid sat 54% below the average — well past the 15% threshold of Article 36, §4 of the Royal Decree of 18 April 2017, which forces the contracting authority to verify the total price of any offer that far below the average. Sofico did so: it asked Men At Work to justify both its total amount (Article 36, §4) and four specific unit prices (items 99–102) that looked ten times the estimate. Men At Work's reply pointed to its expertise in road signalling, central location near Liège, prior subcontracting experience on the same network, and use of local labour. For items 99–102 it admitted a misreading: it had quoted a full crew price instead of a per-person-per-hour price. Sofico flagged those four prices as abnormally high but classified the items as negligible (0.27% of the estimate combined). After a first award on 3 April 2023, a complementary report on 24 April, and a withdrawal-plus-reissue on 28 April for the same €456,120.80, Sotraliège lodged a fresh extreme-urgency suspension request. Sotraliège argued that (1) Sofico's 'negligible' threshold was opaque, (2) only items 99–102 had been examined while the bulk of the contract sits in items 1–98 (preventive maintenance), and (3) the justifications were stereotyped. The Council of State disagreed. Article 36, §4 establishes a specific regime that targets the TOTAL price, not every unit price. The contracting authority has broad discretion, only manifest errors of appreciation are sanctioned, and Sofico's motivation cited bidder-specific elements (depreciated equipment, central location, prior subcontracting on the very same network). The negligible status of items 99–102 was based not only on their share of the estimate but also on their nature (curative maintenance normally done in-house, included only to cover exceptional unavailability). The single ground was held to be unserious and the suspension was refused.
Why does this matter?
The 15% rule looks like a strict tool, but this judgment shows it tempers expectations for anyone hoping it will get a competitor's bid disqualified. Sofico could limit itself to the total price and still win. For bid managers this means: 'my competitor is much cheaper' is not enough. You must show that the contracting authority manifestly exceeded its broad discretion — that its motivation is incomprehensible to any informed observer. For contracting authorities the message is reassuring but not blank-cheque: when the threshold is hit, the Article 36, §4 procedure is mandatory and the motivation must be precise and bidder-specific.
The lesson
If you suspect a competitor's price is unsustainably low, first check whether Article 36, §4 applies (works or fraud-sensitive services, price-only or price weight ≥50%, at least four offers). If yes, that triggers a mandatory total-price examination. To win a suspension, don't focus on the gap itself — focus on concrete signs that the total-price examination was deficient: a motivation with no bidder-specific elements, or justifications that could fit any bidder.
Ask yourself
If the winning offer is more than 15% below the average and price is the dominant criterion: does the award decision contain bidder-specific elements (depreciated equipment, geographic location, prior experience on this exact project), or only generalities that would fit anyone?
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 →