A price justification can be in words — but not in clichés
The Council of State suspends the award of the Bosvoorde racetrack renovation to Heyrman-De Roeck because Leefmilieu Brussel accepted a price justification consisting of purely generic elements ('experience', 'cooperation', 'CO2 reduction'), without numerical substantiation and without any substantive evaluation by the contracting authority itself.
What happened?
In 2023, Leefmilieu Brussel launches a works contract for the renovation of the racetrack and the historical fence of the Bosvoorde racetrack. Open procedure, price as the only award criterion, estimated at 823,733.68 euros VAT included. Five companies bid. Two of them — Heyrman-De Roeck and Sportinfrabouw — fall below the threshold of 15% under the average price and must therefore justify their total price under Article 36, §4 of the Royal Decree on Awarding 2017. Sportinfrabouw provides a price justification with numerical substantiation. Heyrman-De Roeck sends a letter on 19 June 2023 with general elements: experience of the workers and their habit of effectively working together, price calculation 'based on costs and yield of previously executed works' (without sending those calculations along), investments in best execution methods, machines, CO2 reduction, and the confirmation that they have checked the prices and found no errors. Leefmilieu Brussel draws up an award report on 3 July 2023 in which it literally adopts these elements and concludes: 'Analysis of the evidence provided by the bidder shows that the price of its offer is not abnormal.' On 17 August 2023, the contract is awarded to Heyrman-De Roeck. On 5 September 2023, Sportinfrabouw learns that it ranks second. Sportinfrabouw goes to the Council of State in UDN. The dubious icing on the cake: after the award decision, Heyrman-De Roeck contacted Sportinfrabouw to ask whether it would 'possibly still execute part of the works' — a sign that its alleged execution capacity was less than its price justification suggested. The Council of State follows Sportinfrabouw. The principles: for a 'global price', non-numerical justification elements may be accepted — a total price does not need to be explained item by item. But those elements must then concretely demonstrate that the bidder has EXCEPTIONAL CIRCUMSTANCES that allow them to propose a more favorable price compared to the other bidders. Generic elements such as 'experienced workers' or 'investments in CO2 reduction' do not show that distinguishing character — all other bidders also have experienced workers and modern machines. The calculations referred to in the bidder's letter were moreover not attached. More importantly: the contracting authority must take a SUBSTANTIVE POSITION on the received justification. It is not sufficient to literally adopt the elements from the bidder's letter and attach a general conclusion to it. The motivation must show that the authority has assessed the elements and explained why they could remove the appearance of abnormality. The Council of State orders the suspension of the award decision of 17 August 2023. The decision on procedural costs is reserved until the proceedings on the merits.
Why does this matter?
Price justification is one of the most common discussion points in public procurement. For bidders who submit a low global price: a copy-paste of standard sentences from previous files is not enough — you must demonstrate which exceptional circumstances distinguish you from your competitors. For contracting authorities: blindly adopting the bidder's wording in your award report is a common pitfall. You must yourself, in writing, evaluate why the elements provided remove the doubt about abnormality. For excluded bidders: this judgment is a strong basis to challenge an award decision based on price justification — especially if the motivation in the award report suspiciously resembles a repetition of the winning party's letter.
The lesson
When facing a seemingly abnormally low price: ask yourself whether your justification contains elements that other bidders do NOT have. 'Experience', 'cooperation', 'investments in machines' — everyone has those. Add numerical calculations as an attachment, even when justifying a global price. Contracting authorities: your award report may repeat the bidder's elements, but must then add its own evaluation explaining why those elements are convincing.
Ask yourself
Does my price justification (or that of the winner) contain elements that are truly distinctive compared to my competitors? Or are they generalities that any serious bidder could put forward?
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 →