Annulment action by Pierre Frère et Fils against rejection of bid for village development and drainage works in Polleur rejected — price justifications not matching bid prices — abnormal posts not negligible at 6.75% of estimate — discretionary power on negligibility assessment
The Council of State rejected Pierre Frère et Fils' annulment action against the commune of Theux's decision to discard its bid as substantially irregular for the village development and drainage works in Polleur, holding that price justifications whose amounts did not match the bid prices (discrepancies of 1.51% to 43.51%) were rightfully considered unacceptable and that the assessment of non-negligibility of the nine posts concerned (6.75% of estimate, 4.96% of bid amount) did not constitute a manifest error of assessment.
What happened?
The commune of Theux tendered public works for village development and drainage. Nine line items in Pierre Frère et Fils' bid showed apparently abnormally low prices. After requesting justifications under Article 36 of the Royal Decree of 18 April 2017, the commune found that none of the justifications matched the actual bid prices (discrepancies from 1.51% to 43.51%), with omissions regarding lateral pipe bedding and contaminated soil management. The cumulative value of abnormal posts reached 6.75% of the estimate and 4.96% of the bid amount. The Council upheld the rejection: justifications must enable verification of actual bid prices; price control aims not only to prevent insolvency but also to prevent speculation and unfair competition; negligibility is assessed per post, not based on total abnormalities versus profit margin; no threshold obligation exists.
Why does this matter?
This ruling clarifies that price justifications must correspond to actual bid prices, that price control serves broader purposes than preventing insolvency, and that negligibility is assessed per post rather than against the tenderer's profit margin.
The lesson
Ensure price justifications exactly match bid prices. Include all elements prescribed by tender documents. Do not argue that total abnormalities fall within profit margins. As contracting authority, provide quantitative motivation for non-negligibility.
Ask yourself
Do your price justifications match your actual bid prices? Have you included all prescribed elements? As contracting authority: is your quantitative motivation for non-negligibility clear?
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 →