Trade secrets are not a free pass for a boilerplate clause when prices look abnormally low
The Council of State suspends the award of two SNCB lots because the contracting authority itself flagged the winner's prices as apparently abnormally low, requested justification, and then dismissed the response with a single sentence in the award decision.
What happened?
SNCB awarded a national framework contract for moving and transport services in five geographic lots over eight years. Five firms submitted bids; Potiez-Deman ranked first on all five lots. Mozer Belux ranked third on lots 1-3 and second on lots 4-5. During price analysis, SNCB had itself flagged the prices of Potiez-Deman and Vervaet Verhuis as 'apparently abnormally low or high'. On 14 March 2023, SNCB asked both firms — citing article 44 of the Royal Decree of 18 June 2017 (special sectors) — to provide all information needed to understand their prices. Potiez-Deman replied on 28 March with a detailed note. SNCB analysed it internally. In the award decision of 1 June 2023, SNCB justified its conclusion on price control with: 'Based on the analysis of the information received from both companies, SNCB [finds] that the explanations given explain the indicated prices and that the total amount of the offer is not abnormal.' No mention of what Potiez-Deman had argued, no indication of which elements were convincing. Mozer filed for extreme urgency, and the Council of State suspended the award for lots 4 and 5 (where Mozer was second in line). The Council called the reasoning a 'clause de style' — it neither identifies the difficulties faced during price control nor allows outsiders to grasp what convinced the authority. Crucially: confidentiality of trade secrets is a valid limit, but it does not exempt the contracting authority from summarising the substance of the justification without disclosing the figures themselves. At the hearing, SNCB's lawyer did exactly that orally — proving it was perfectly possible to do so in writing. Suspension for lots 4 and 5; for lots 1-3 the application was inadmissible because Mozer (third) could not show prejudice.
Why does this matter?
The 'abnormally low prices + trade secrets' combination is a familiar trap. Contracting authorities often assume that confidentiality lets them keep the price-control section short. It does not. Once you have asked for justification, you keep a paper trail of the analysis, and the award decision must show you actually examined the response — in general terms if needed, but substantively. Otherwise a losing bidder cannot judge whether an appeal is worth filing, and that alone justifies a suspension.
The lesson
If you flagged a price as apparently abnormal and asked for justification: your award decision must contain a recognisable summary of what you examined and what convinced you — not a single sentence saying it's fine. Trade secrets are a legitimate limit but not a cover for empty reasoning. Write it so that a losing bidder can decide whether to appeal.
Ask yourself
Does your award decision contain more than two sentences on price control? Does it state which prices you found doubtful, on what legal basis you requested justification, and which kinds of arguments persuaded you (without disclosing the figures)? If not, rewrite before sending.
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 →