Annulment of lot 2 award of military works framework agreement — failure to verify global price of tenders due to confusion about scope of Article 36 §4
The Council of State annuls the award of lot 2 (Florennes zone) of a works framework agreement for maintenance of road infrastructure in military quarters of the Defence because the contracting authority failed to verify the global price of selected tenders, wrongly considering that Article 36 §4 of the Royal Decree of 18 April 2017 exempted it from this verification when fewer than four tenders were selected.
What happened?
The Belgian Defence launched an open tender for works framework agreements with unit prices for maintenance, repair and limited adaptation of road infrastructure in military quarters, divided into two lots: lot 1 (Beauvechain zone) and lot 2 (Florennes zone). On 19 June 2019, lot 2 was awarded to SRL Société Européenne de Travaux. SA Melin, the unsuccessful tenderer, first filed an extreme urgency suspension request (rejected by ruling no. 245,331 of 29 August 2019), then an annulment appeal. Its third plea concerned violation of Article 35 of the Royal Decree of 18 April 2017. The award decision revealed that the authority verified unit prices (found acceptable) but did not analyse global prices because the number of selected tenders (3) was below four. The respondent argued that correction of material errors constituted price verification and that the mere 4.5% gap between tenders did not reveal abnormally low prices. The Council rejected both arguments. It recalled that Article 36 §4 creates a specific obligation additional to the general price verification obligation under Article 84 of the Act and Articles 33 and 35 of the Royal Decree: the fact that the four-tender minimum is not met does not relieve the authority of verifying global price normality. The correction of material errors (Article 34) is a distinct exercise from price verification (Articles 33 and 35) and cannot be confused with it. The plea did not challenge the authority's assessment margin but the very absence of verification. The award decision for lot 2 was annulled. The auditor had given a contrary opinion.
Why does this matter?
This ruling confirms, in the context of a unit-price works contract with a limited number of tenders (three), that the price verification obligation — both unit and global — is unconditional. Article 36 §4 is not the basis for the price verification obligation but an additional obligation creating a presumption of abnormality. When its conditions are not met (fewer than four tenders, criterion not exclusively price-based), the authority remains obliged to verify global price normality under Article 84 and Articles 33 and 35. The ruling also clearly distinguishes correction of material errors (Article 34) from price verification — two distinct exercises.
The lesson
The price verification obligation applies always, regardless of the number of tenders received. If Article 36 §4 does not apply (fewer than four tenders, or conditions not met), this does not exempt from the general verification under Articles 33 and 35. Do not confuse correction of material and arithmetic errors (Article 34) with price verification (Articles 33 and 35): these are fundamentally different exercises. Document your price verification in the decision or administrative file, even if you consider no price to be abnormal.
Ask yourself
As contracting authority: have I verified both unit prices and the global price of all selected tenders, even if I received fewer than four tenders? Have I documented this verification in the decision or administrative file? Have I confused correction of material errors with price verification? If Article 36 §4 does not apply, have I still verified global price normality?
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 →