A €9.93m bid against a runner-up of €17m is not automatically an abnormal price — the Council of State leaves the Flemish electronic monitoring award to Attenti standing
The Council of State refuses to suspend the award of the Flemish electronic monitoring contract to Attenti for €9.93m — barely half the runner-up's bid — because economies of scale, proprietary technology and incumbent status can plausibly explain the gap, and because SuperCom cannot credibly close its 42.86-point shortfall on the quality criterion.
What happened?
In November 2021 the Flemish Community launched a framework agreement for the full electronic monitoring of offenders — ankle bracelets, the EMS platform, and supporting hardware and software — on behalf of the Flemish, French and German-speaking Communities. The procedure was a competitive dialogue. The contracting authority initially estimated the contract at €68 million excl. VAT; the award report later revised the estimate to €54.55m and then €30.75m (incl. VAT). After two dialogue rounds, three candidates were invited to submit final tenders. The arithmetic-checked totals: Attenti €9,933,200, SuperCom €17,066,752.97, Buddi €22,389,045 — all far below even the lowest revised estimate. The scorecard read Attenti 100/100 (40 cost, 60 quality), Buddi 59.27/100, SuperCom 57.14/100 (11.27 cost, 45.87 quality). On 16 June 2023 the Flemish Minister of Justice awarded the contract to Attenti. SuperCom turned to the Council of State in extreme urgency with three pleas. The first plea argued that, given the price gap, the Flemish Community should have triggered a special abnormal-price investigation under Article 36 of the Royal Decree of 18 April 2017, rather than stopping at the general examination under Article 35. The Council accepted that significant price gaps require a thorough general examination, but held that running such an examination is not in itself proof of abnormality. The Flemish Community's reasoning — bidders' own technology and manufacturing choices, the small market and few bids, a lower transition fee for the incumbent, scale effects (Attenti monitors more than 80,000 people globally, SuperCom 4,000–5,000), new technology, investment in production facilities in a low-wage country — was upheld point by point as falling within the contracting authority's substantial discretion. The second plea — that hedge phrasing such as 'subject to' in the award report betrayed doubt about the conformity of Attenti's equipment — failed because isolated sentences cannot be lifted out of context. The third plea — a detailed challenge to the quality assessment — was declared inadmissible for want of interest: SuperCom had to show that its critique could plausibly close the 42.86-point total gap (and the 14.13-point gap on quality), and it failed to do so. The application was rejected.
Why does this matter?
For bid managers considering a challenge, this judgment is a double warning. First, a wide price gap — even a factor of two below the runner-up — does not, of itself, qualify a bid as abnormal. The contracting authority must run a thorough general price examination under Article 35 and may use non-numerical factors (technological innovation, scale, market conditions, incumbent position). Second, a challenge to the quality assessment will not be heard unless the applicant shows that its critique can plausibly close the points gap. If you trail by 42 points, your application must spell out exactly how your critiques on specific sub-criteria add up to a swing big enough to flip the ranking. Without that arithmetic, the plea fails for lack of interest — without ever being examined on the merits.
The lesson
If you are thinking about attacking a lower bid as abnormal, first build a file of explanations the winning bidder can point to: scale advantages, proprietary technology, manufacturing location, incumbent status, learning effects. The contracting authority is allowed to give weight to all of these in the general price examination. A bare comparison with the estimate or with other bids will not suffice. And if you challenge a quality assessment: always work out in your application itself how your critique translates into points. Without that calculation, no interest, no examination on the merits.
Ask yourself
Trailing by more than 30 points on the 'quality' criterion? Before you launch an extreme-urgency suspension: can you specify, sub-criterion by sub-criterion, exactly how many points you would recover and prove that the total swing is enough to overturn the ranking?
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 →