SOFICO reads a binding yield threshold into its own tender documents — and loses the same award for the third time
The Council of State suspends the €3.17m award of a road-verge maintenance contract to SA Krinkels because SOFICO turned 'estimated' figures from Annex D of its own tender documents into binding yield and duration thresholds during the price review — leaving bidders unable to know in advance that any deviation would automatically signal an abnormal price.
What happened?
SOFICO, the Walloon road-infrastructure financier, awarded a multi-year contract for mowing, clearing and maintaining the verges along Walloon motorways (tender SOFICO-21-1036, 'MI62'). SA A2 bid €2,496,954.82 excl. VAT — the lowest in the field. Krinkels came in at €3,177,961.58, more than €681,000 higher. SOFICO doubted six items in A2's offer (nos. 45, 46, 81, 82, 159, 160) and asked for price justification. A2 substantiated extensively: experience on fourteen ongoing sites in Hainaut, recently purchased tractors and gully cleaners, weekend work that limits traffic disruption, simultaneous execution of multiple items, custom-built equipment with a front platform that reduces transit times. Between 2022 and 2023, SOFICO declared A2's offer irregular three times for abnormal prices, awarding to Krinkels each time. The Council of State quashed those decisions twice — in rulings 253,496, 255,119 and 255,712. After the third ruling, SOFICO withdrew its award (24 February 2023). On 29 March 2023 it sent A2 a fresh request for price justification, this time with concrete numbers: for item 81, any yield above 18,000 m²/hour/man would be 'unrealistic'; for item 82, any execution time below 32 hours would be 'unrealistic'. SOFICO derived those thresholds from Annex D7 of its tender documents: five interchanges totalling 573,880 m² with an 'estimated execution time per campaign' of 32 hours. The arithmetic: 573,880 ÷ 32 = 17,933.75 m²/hour/man, rounded to 18,000. On 20 June 2023, SOFICO again declared A2 irregular and awarded to Krinkels for the third time. A2 went back to the Council of State in extreme urgency. On 27 July 2023 it suspended the award. The reasoning: the figures in Annex D were indeed in the tender documents, but presented as 'estimated' — not as binding thresholds. SOFICO had never announced that any deviation from them would automatically point to an abnormal price, nor that, when asked to justify their prices, bidders would have to defend them within those yield and duration ranges. By retroactively giving binding force to 'estimated' figures, SOFICO breached the principle patere legem quam ipse fecisti and the transparency principle of Article 4 of the Law of 17 June 2016: not all bidders had been able to build their prices knowing the actual rules SOFICO ended up applying.
Why does this matter?
For bid managers this judgment shows that a contracting authority cannot simply reject an offer as 'abnormal' on the basis of yield norms it derives from indicative figures in a tender annex. For procurement officers it is a warning that 'estimated' execution times or stated areas cannot suddenly be repurposed as binding thresholds during price review. Anyone who wants that role for them must announce it clearly and upfront — otherwise they are rewriting their own tender documents post hoc, and the award will fall on the transparency principle.
The lesson
If you are a bidder facing a price-justification request that suddenly works with 'unrealistic' yields or durations derived from a tender annex, always check first how those figures were presented in the tender documents — as estimates or as binding norms. Wording such as 'estimated', 'indicative', '+/-' or 'estimated time frame' points to the first, in which case those figures cannot be an automatic yardstick for abnormality. Ask the contracting authority to point out where in the tender documents it was announced that deviating from those figures would mark a price as irregular. If they cannot, you have a strong argument for suspension.
Ask yourself
Are you about to declare an offer 'irregular due to abnormal prices' based on yields or durations you derived from an annex of the tender documents? Did those documents explicitly announce that deviation from those figures would automatically mark the price as abnormal? Or were the numbers there labelled 'estimated' or 'indicative'?
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 →