Municipality of Westerlo must thoroughly examine unit prices in cemetery pavilion construction
Suspension ordered: Municipality of Westerlo examined only total prices but not unit prices when awarding farewell pavilion construction on cemeteries, despite large deviation percentages per item.
What happened?
The Municipality of Westerlo tendered a works contract through a simplified negotiated procedure with prior publication for the construction of farewell pavilions (6x) and storage areas (6x) at 7 cemeteries, estimated at EUR 591,457.64 (revised: EUR 623,403.59, excl. VAT). Price was the sole award criterion. Three tenderers submitted offers: nv D. (EUR 970,320.80), nv De Peuter (EUR 798,344.24) and bv V. (EUR 623,642.82), all excl. VAT. The offer of nv D. was declared substantially irregular for lacking the mandatory site visit certificate. In the award report, the municipality stated in standard phrasing that no apparently deviating total or unit prices were found. The college of mayor and aldermen awarded the contract on 15 April 2024 to bv V. NV De Peuter sought suspension, arguing that no proper price examination of unit prices had been conducted. The Council found that Article 36 of the Royal Decree on Placement 2017 does not apply (simplified negotiated procedure below EUR 500,000, §6), but that the general price examination under Article 35 always remains mandatory. The total price of bv V. was close to the estimate and only 13% below the average of the two regular offers — so at total price level there was no immediate issue. However, a confidential document 'Total Price Examination' revealed that the municipality itself found abnormally high and low prices, without subsequently conducting further examination of unit prices. The municipality also submitted a document 'Unit Price Control' that was prepared post factum after the claim — this document cannot be taken into account. That document moreover revealed large deviation percentages per item for non-negligible items. The Council ruled that the municipality failed to demonstrate that it had subjected unit prices to careful examination before the award decision, and ordered suspension.
Why does this matter?
This ruling makes clear that a contracting authority cannot limit itself to a price examination at the total price level only. When large deviation percentages exist per item — even if the total price is close to the estimate — the authority must concretely examine the unit prices and justify why they are acceptable. A post factum document cannot remedy this deficiency. The mere proximity of total price and estimate does not prove that every item is realistically priced, nor that competition was not distorted.
The lesson
Always conduct a unit price examination, even when the total price is in line with the estimate. Document that examination before the award decision. Watch for large deviation percentages per item: even if the total price deviates less than 15% from the average, individual items may be problematic. A post factum analysis does not convince the Council of State.
Ask yourself
Have I examined not only total prices but also unit prices? Did I document that examination before the award decision? Are there items with large deviation percentages that I need to further examine and justify?
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 →