A suspiciously high price is just as problematic as a suspiciously low one — price verification must go both ways
The Council of State suspends the award of the project & construction management for Vivalia's new regional hospital to ATIS because Vivalia only challenged low prices, while the winning bid was significantly above the estimate on several items without ever being questioned.
What happened?
Vivalia, an intercommunal body operating four hospitals in the Luxembourg province, is preparing the construction of a new Regional Hospital Centre-Sud on the Houdemont site (Habay) — about 92,000 m² and 660 beds. To steer the project it tenders a Project Manager and Construction Manager team, split over one firm tranche and four conditional tranches (total works estimated at nearly €555 million). The price is not fixed but expressed as percentage fees on actual costs. Three bids: VIVA-PM (nearly 13% below the €9,599,299.62 TVAC estimate), QBUILD/IMMO-PRO (slightly above) and ATIS (well above). During price verification in December 2023 Vivalia sent specific questions to all three — but with a strikingly incoherent selection of tranches per bidder. QBUILD was queried on tranches 1-3 PM (where its price was near the estimate), while ATIS was not queried on tranche 5 PM though its price there was more than 50% below the estimate. QBUILD answered with days worked per profile per month, without hourly rates. Vivalia itself noted 'the justification cannot convince' — but did not request further justification under Article 36 of the Royal Decree of 18 April 2017, arguing QBUILD would not rank first anyway. For ATIS Vivalia was satisfied with two observations: (1) hourly rates higher than VIVA-PM's and (2) 'for high prices the verification question arises differently than for low prices, which would signal risk of poor execution'. ATIS' quality of offer (high score on the second criterion) was then invoked to justify the price level. Immo-Pro and Qbuild sought urgent suspension. Their third ground on price verification was found serious. The Council identified four fundamental flaws: First, incoherent choice of tranches: Vivalia's selection had no discernible logic and treated comparable deviations differently — enough by itself to find a breach of the duty of concrete, effective price verification (Article 35). Second, refusal to follow up despite its own doubts: Vivalia admitted some VIVA-PM and applicant prices raised doubts, but did not request Article 36 justifications — itself a breach. Third, the argument that high prices are less problematic than low was rejected outright: abnormally high prices harm the fundamental interests of the authority and public finances; an authority is never exempted from verification just because a price is high. Moreover ATIS also had very low unit prices that went unchecked. Fourth, the quality of the bid (award criterion) cannot establish price normality — regularity must precede quality. ATIS' methodology was described as 'stereotyped' and gave no basis for projecting the number of hours it would take. The general motivation 'intellectual services allow greater margin' was stereotyped and would immunise certain price parameters from any verification — contrary to Articles 35 and 36. Suspension ordered, immediate execution.
Why does this matter?
This judgment confirms with unusual sharpness that price verification must be proportional and coherent: all prices deviating from the estimate should be questioned by the same logic, not selectively. The judgment also rejects two well-worn defences of contracting authorities: (1) high prices are less problematic than low ones, and (2) intellectual services allow more pricing latitude. Both arguments no longer work as shields for thin verification. For bid managers losing to a competitor whose price is an outlier elsewhere: this case law gives you a very strong ground.
The lesson
If you lose to a competitor whose price deviates strongly from the estimate on certain items (up or down), immediately request the award report and compare who was queried on what. Did the authority choose incoherently — only questioning your prices while leaving the winner alone on similar deviations? You have a suspension ground. Also check: did the authority follow up under Article 36 when the initial justification was doubtful?
Ask yourself
Are there unit prices or tranche amounts in the winning bid that deviate strongly from the estimate (more than 15–20% up or down)? Did the authority query those deviations? Is the motivation for accepting them concrete (hourly rates, days, underlying data) or stereotyped ('quality justifies the price', 'intellectual services')? Is the choice of who was queried on what coherent — or were you queried more heavily than the winner on comparable deviations?
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 →