An oral statement during the site visit doesn't amend the tender — and so cannot make an offer irregular
The Council of State suspends the award of an asbestos-removal contract to Laurenty because the Régie des Bâtiments rejected SBMI's offer based on an oral instruction given during the site visit and only partially addressed SBMI's price justification in its reasoning.
What happened?
In January 2023 the Régie des Bâtiments launched a tender for asbestos removal and floor-tile replacement on the 2nd floor of bloc D at the Géruzet barracks in Etterbeek (federal police), open procedure, estimated 467,707 EUR HTVA. Six bidders. During price review, the Régie asked SBMI for clarifications on items 16 (hermetic-zone setup), 17 (friable-asbestos evacuation) and 19 (final cleaning) — first under art. 35 of the 18/04/2017 Royal Decree (clarification), then for item 17 under art. 36 (justification of abnormally low prices). On item 17, SBMI's price was 79.5% below the average of other offers. SBMI's reply was detailed: own trucks and containers (depreciated), driver on payroll, sharp prices negotiated with treatment and landfill centres as a registered waste collector, and a split of the friable asbestos into two fractions — 'asbeste friable en traitement' (€950/tonne via treatment centre) and 'asbeste friable de classe 1' (€80/tonne via landfill). That split made the low rate possible. On 3 August 2023, the Régie excluded SBMI's offer for substantial irregularity (abnormally low price on item 17, which represented 32% of the contract value) and awarded to Laurenty Bâtiments Gebouwen for €467,707 HTVA. The reasoning: the on-site sorting solution had been 'discussed in advance during the site visit' and the contracting authority had then said it should not be in the base offer — bidders could include it in the 'volet D lacunae' section, which SBMI hadn't done. SBMI filed an extreme-urgency suspension on 18 August. The Council of State held on two findings. One: the contested decision nowhere explains why a preliminary sort is substantively incompatible with the base offer — it only refers to oral discussions during the site visit. An oral instruction by a staff member during a site visit is not a valid amendment to the tender documents. Amendments require a decision by the competent body of the contracting authority. Two: the reasoning addresses only the on-site sorting and stays silent on SBMI's other justifications (favourable conditions, own materials, payroll driver). A price justification requires 'a concrete and effective examination' of all the elements raised, with reasoning showing 'the reality, accuracy and relevance' of the supporting elements. The supplementary reasoning the Régie produced in its written observations and at the hearing comes too late: 'a posteriori explanations cannot cure the reasoning defects of the contested act.' The second branch of the plea is serious. Suspension granted.
Why does this matter?
A double warning for contracting authorities working on technically complex contracts (asbestos, demolition, specialised renovation). First: anything said during a site visit is informational — not a contractual element. If you want something to be a tender requirement, it must appear in the written documents, validated by the competent body, ideally communicated to all bidders via a corrigendum. Second: a price justification isn't a checkbox exercise but a reasoned debate. As a contracting authority, respond to ALL the elements the bidder raises, not just the weakest. For bid managers, the inverse: lay out your cost model with arguments and keep the parts separate — if the authority only attacks one part, the others stand as evidence that the reasoning was too narrow.
The lesson
If you discuss a deviating method during a site visit (e.g. 'split the asbestos into two fractions for cheaper disposal'), write it into the tender as a corrigendum afterwards — otherwise a bidder can invoke that method as price justification AND drag you to court. And in any decision excluding for abnormal price: make a table with (a) the elements of the bidder's justification and (b) your concrete objection per element. No row? No reasoning. No reasoning? Suspension.
Ask yourself
For every decision to exclude an offer for abnormally low price: open the bidder's price justification, read it paragraph by paragraph, and check whether your award report addresses each argument separately — own equipment, own staff, negotiated rates, technical method. One argument missed = a hole in the reasoning = a successful suspension challenge.
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 →