A 'request for clarification' is not a price investigation — only a real suspicion of abnormality triggers the wage / CLA check
The Council of State refuses to suspend the award of the OTW guarding contract for Namur station to Securitas: a request asking the bidder to explain price differences between rate items does not constitute a formal price investigation under article 44 of the special-sectors royal decree — and without that investigation, no obligation to verify wage and collective-bargaining compliance is triggered.
What happened?
The Walloon transport operator OTW launched, by negotiated procedure without prior competition, a contract for guarding the Namur station 'dalle' (CSC NL/EXPL/2023/01). The system combined a daily price for regular services (award criterion 1.1, 50 pts) with a 12-rate hourly average for call-out / alarm interventions (criterion 1.2, 20 pts) — average maximum 70 € (excl. VAT), otherwise substantially irregular. Three firms were consulted, two bid: Securitas and Maximum Security. Securitas posted an average of 31.82 € (excl. VAT) for the 12 interventions, against 58.32 € for Maximum Security. On first review, OTW initially flagged some Securitas prices as 'apparently abnormally low'. On 19 April 2023 OTW asked Securitas to clarify large differences between the hourly tariffs and the particularly low pricing of items 2, 5, 8 and 11 ('late working' 8-10 pm). Securitas replied next day, citing scale advantages (130+ sites in the Namur area, base patrols in the province, time-sharing of wage costs across multiple contracts) and marginal-cost differentiation per timeslot. After an initial award challenged by Maximum Security, OTW withdrew and re-examined. In the second report, OTW reformulated the question as a 'request for clarification' on rate differences and unusually low prices — without the formal qualification 'apparently abnormally low'. OTW accepted Securitas's explanations and on 26 June 2023 awarded for € 249,238.80 (basic) / € 747,716.40 (36 months including renewals). Maximum Security filed an extreme-urgency suspension with two pleas. First plea, first branch: breach of article 44 § 2 fourth paragraph of the special-sectors royal decree because OTW had not asked Securitas to justify compliance with wage, social and welfare obligations. The Council rejected: the 19 April email was not a 'request for justification of apparently abnormal prices' but a 'request for clarification' on differences and particularly low prices, without the qualification 'apparently abnormally low'. Therefore OTW was not in the hypothesis of article 44 § 1 and did not have to invoke the additional social-justification obligation. The plea rests on a 'mistaken postulate'. Second branch: Securitas's explanations (scale advantages, time-sharing) are irrelevant and unlawful because mutualising wage costs across clients is 'expressly prohibited'. The Council: travel time DOES influence the hourly tariff (CSC III.6 expressly includes 'travel to site' in the intervention); the criticism confuses the wage cost of an agent (which can be split across contracts) with the invoicing of a specific intervention (fully invoiced to OTW, including margin); and no provision identified by the applicant prohibits mutualisation. Inadmissible. Third branch: the minimum wages of joint committee 317 (M2 mobile agent class: € 17.89/h + uplifts) yield a minimum hourly cost of € 37.01 — impossible to respect with an average of € 31.82. The Council: this assumes that the agent's wage cost must be borne entirely by OTW, while the specifications do not require it and the bidder is free to deploy his agents across multiple contracts. Not serious. Second plea: motivation duty regarding CC 317. The Council: since OTW had not suspected the prices as abnormal (per the first branch), it had no duty to perform a specific collective-agreement check or motivate one. Suspension refused. Securitas intervention accepted. Immediate execution ordered.
Why does this matter?
The line between 'request for clarification' and 'request to justify apparently abnormal prices' looks subtle but has major consequences. A formal price-investigation request (article 44 § 1 special sectors / article 36 § 1 classic sectors) ALSO triggers the obligation (§ 2 fourth paragraph) to ask about wage, environmental and labour-law compliance. A simple clarification request does not. For contracting authorities this is a warning to formulate carefully: do not casually label a price as 'apparently abnormal' if you do not really suspect it — you would activate the full social-justification cascade. For bidders: public-procurement law does NOT prohibit mutualising wage costs across contracts. A price that looks artificially low through scale advantages or time-sharing can be perfectly normal — provided the bidder can show minimum wages are respected at his total-staff level. If you want an agent fully dedicated to your contract, write that into the specifications.
The lesson
For contracting authorities: choose the right phrasing when asking a bidder to explain. 'Apparently abnormally low' is a technical-legal qualification that activates the entire article 36/44 procedure, including the social-justification check. If you just want more detail on rate differences, formulate clearly as a 'request for clarification' without the 'apparently abnormal' label. For losing bidders: a plea based on breach of wage or collective-agreement obligations only works if the contracting authority itself qualified the price as 'apparently abnormally low'. For aggressive pricing: document how minimum wages are respected, even with scale advantages or mutualisation — but know that mutualisation as such is not prohibited.
Ask yourself
In your question to the bidder: did you use 'apparently abnormally low/high' (regulatory wording activating article 36/44) or a neutral 'request for clarification'? Do you understand the difference? As an applicant: what exactly did the authority ask the winner — did it qualify the price as 'apparently abnormal' or not? Only in the first case can you raise breach of the social-justification check. Want to force dedicated personnel? Write it into the specifications — otherwise mutualisation is allowed.
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 →