52% below the estimate and 35% below the competitor: 'no abnormal price found' is not a justification
The Council of State suspends the award of a grave monument restoration contract because the municipality of Zulte dismissed the strikingly low winning price — 52.5% below the estimate and 34.7% below the second bidder — in the award report with the standard phrase 'no abnormal total or unit prices identified', without the file showing that a genuinely diligent general price review took place.
What happened?
The municipality of Zulte launched a negotiated procedure without prior publication for the restoration of eleven grave monuments in the 'Machelen oud' cemetery — funerary heritage. Estimated at €133,781 excluding VAT. Three companies submitted an offer: nv M. (not selected because it omitted qualification certificates), nv A.V. (the applicant) and bv L.A. Award criteria: price 30 out of 100, concept note 60 out of 100, execution timeline and site organisation 10 out of 100. L.A. bid €76,880.98 VAT included, A.V. €117,819.44 VAT included. A difference of 34.7% between the two offers. L.A. sat 52.5% below the estimate; A.V. 27.2% below. Substantively, A.V. scored better on the concept note (60/60 vs 50/60 for L.A.): 'very detailed', 'caution and expertise', particularly in treating cracks and stylolites. On execution timing L.A. scored slightly better (10 vs 8). Totals: L.A. 90%, A.V. 87.58%. Award: L.A. The applicant argued that the municipality conducted no serious price review despite the appearance of abnormality. The municipality invoked art. 36 §6 of the 2017 Royal Decree: the special review of abnormal prices is not mandatory in a negotiated procedure without publication for works under €500,000. True. But the Council of State recalls that the GENERAL price review (art. 35 of the Royal Decree, art. 84 of the Act) always applies — it is an inherent part of the regularity review. Article 36 (special review) may not be mandatory, but when a diligent observation reveals apparently abnormal prices, the contracting authority must at least investigate that appearance and justify why it bypasses it. A 52.5% deviation from the estimate combined with 34.7% below the second bidder is, per the Council, 'apt to arouse some suspicion in a diligent contracting authority'. The award report itself states only: 'No abnormal total or unit prices were identified.' The administrative file did contain a confidential 'Internal review of offers' comparing items per grave. But the Council reviews that document and finds: the only substantive explanation it offers for the price difference is that A.V. allegedly adds 'an extra condition survey per grave'. That doesn't hold up: every restorer must logically first assess the condition on site before restoring. Neither the award report nor the file shows evidence of a diligent general price review. The ground is serious. Emergency suspension granted.
Why does this matter?
The negotiated procedure without prior publication below €500,000 is popular for smaller works — and many contracting authorities think it also exempts them from a price review. It does not. Article 36 (special review) is indeed not mandatory. But article 35 (general review) and article 84 of the Act remain fully applicable. Concretely: when a winning offer sits significantly below both the estimate and the other bidders, the award report must contain more than the standard phrase that no abnormal prices were identified. The file must show that a diligent comparison actually took place — and if there is a substantial difference, that there is a rational, defensible explanation for it. This case is also interesting because the Council does consult the confidential internal review: it is not enough to keep the justification 'in reserve' in an internal document if that document itself fails to demonstrate genuine scrutiny.
The lesson
When a winning offer is more than 25% below the estimate and more than 20% below the second bidder: document your general price review explicitly in the award report. For each significant difference, state a concrete, testable explanation — ideally tied to objective elements (lower overheads, own equipment, more efficient execution, cheaper subcontracting). 'No abnormal prices identified' is a formula, not a justification. And: the exemption in art. 36 §6 for negotiated procedures under €500k releases you only from the SPECIAL review — never from the general one.
Ask yourself
In your negotiated procedure, is the winning offer more than 25% below your estimate AND more than 20% below the second bidder? Can you pinpoint in the award report which items explain the difference, and why that difference is genuine rather than simply under-pricing? If your answer is 'we identified no abnormal prices': you don't have a justification, you have a formula.
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 →