Rejecting a bid for abnormal prices? You must also state why those items are 'non-negligible'
The Belgian Council of State suspends the award of a green-space maintenance contract to Eurogreen because Bruxelles Environnement explained in detail why two of Krinkels' unit prices were abnormal — one assumed a gardener mowing eleven football fields a day — but nowhere motivated why those items qualified as 'non-negligible' under Article 36 of the Royal Decree of 18 April 2017.
What happened?
On 23 January 2023 Bruxelles Environnement published a services tender 'Entretien des espaces verts – zone ouest', divided into two lots, with price as the sole award criterion. Five bidders tendered, including Krinkels. During price verification (Article 35 RD 18 April 2017) the authority questioned Krinkels, among others. Krinkels answered on 9 May 2023 with extensive tables on labour, materials, coefficients and framework agreements with waste processors and aggregate suppliers. In the analysis report of 13 June 2023 six Krinkels unit prices were reviewed. Four were accepted. Two were not: - Item 0.3.6.4 (mowing without collector): productivity of 120,000 m²/day for one gardener — about eleven football fields — 'manifestement déraisonnable'. The cost of a second gardener was deemed missing. - Item 0.4.1.2 (hedge trimming, 3x/year): five gardeners but only one trimmer in the cost breakdown. At least three trimmers should have been priced, leading to a m²-price of €0.55. Result: two rejected items → offer null → lot 1 awarded to Eurogreen on 14 July 2023. The rejection letter to Krinkels (11 August) repeats the price reasoning but never mentions that those items are considered 'non-negligible' under Article 36. Krinkels files an extreme-urgency suspension. Its core argument: Article 36 § 3(1°) only permits rejection for abnormal prices affecting 'non-negligible' items. That qualification was never made explicit, let alone communicated. The Sixth Chamber sitting in chambers agrees. Article 36 requires two separate findings: the price is abnormal AND the item is non-negligible. The authority has discretion on the second, but must actually make and express that finding. 'If that qualification is not stated in the act, a step in the authority's reasoning is not expressed and the decision is vitiated by a formal motivation defect.' The authority invoked thresholds used in the analysis report, but those are absent from the letter to Krinkels and the earlier price-justification request. Eurogreen argued the items represent 7.89% and 5.65% of Krinkels' offer and are 'manifestement non négligeables', but the Council of State may not substitute its appreciation for the authority's. That Krinkels did not later challenge the point in a new plea does not cure the defect: reasons must be communicated before the appeal. Balance of interests: no countervailing harm identified. The award to Eurogreen and the rejection of Krinkels' offer for lot 1 are suspended with immediate effect.
Why does this matter?
For bid managers whose offer is rejected for abnormal unit prices, this is a very effective lever. The rejection letter must carry two findings, not one. Check whether 'non-negligible' (or equivalent) is explicitly motivated. If not: formal motivation defect, suspension realistic. For contracting authorities: a common mistake. Your analysis report may be technically strong, but if both findings of Article 36 are not visible in what the bidder receives, the decision falls. A procedural brief cannot repair this.
The lesson
When you reject an offer for abnormal prices on one or more items, write TWO things per item in both your decision and your communication to the bidder: (1) why the price is abnormal, and (2) why the item is non-negligible. The second can be expressed as a percentage of the total, as absolute value, or by reference to the item's role — but it must be stated. You cannot add this later in a procedural brief: the Council of State only looks at reasons communicated before the appeal.
Ask yourself
Take out the rejection letter. Does it literally say something like 'item X represents Y% of the offer and is therefore not to be considered negligible' — or equivalent? If not: your decision is formally under-motivated, even if the abnormality finding itself is sound.
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 →