Annulment of award lot 6 Project FAST: contracting authority imposes maximum unit prices without prior cost analysis — duty of care violated
The award decision for lot 6 (towing vehicles MTM ≤ 3.5 t on E17 Middle) of the framework agreement Project FAST is annulled because the Agency for Roads and Traffic imposed maximum unit prices in the inventory — largely taken from the 2013 specifications — without demonstrating that a prior price or cost analysis was conducted, thereby violating the duty of care.
What happened?
The Flemish Region (Agency for Roads and Traffic) launched an open procedure for a framework agreement for incident management on motorways in the province of East Flanders (Project FAST). The contract comprised seven lots for towing and removing vehicles with a maximum authorized mass of 3.5 tonnes or less. The dispute concerned lot 6 (E17 Middle) and lot 7 (E17 North). The sole award criterion was price, calculated as a discount percentage on maximum unit prices imposed by the contracting authority. These unit prices were largely identical to those from the previous 2013 specifications. D.D.G. submitted a tender for lot 6 (but not lot 7) with a reservation stating the imposed prices were unworkable and reserving the right to terminate if prices were not revised. The contracting authority declared D.D.G.'s offer substantially irregular due to these unilateral conditions. Lot 6 was awarded to D.G. D.D.G. sought annulment. The Council of State found the plea admissible despite D.D.G.'s irregular offer: the Labonorm doctrine holds that a specification clause requiring timely objections cannot bar judicial review; and D.D.G. had standing because its plea aimed to show the contract could not be awarded to anyone under the existing specifications. For lot 7 (no tender submitted) and the implicit refusal decision, D.D.G. lacked standing. On the merits, the second grievance was upheld: the contracting authority failed to demonstrate any prior cost analysis. An Excel document (exhibit 10) submitted as proof was excluded as untimely — it could have been filed earlier. The award decision for lot 6 was annulled.
Why does this matter?
This ruling establishes that a contracting authority imposing maximum unit prices must conduct and document a prior price or cost analysis. Simply copying prices from earlier specifications without updating or substantiation is insufficient. The duty of care requires demonstrable market analysis. The ruling also confirms the Labonorm doctrine and clarifies that a tenderer whose offer was declared irregular may still have standing if the plea aims to show the contract could not be validly awarded under the existing specifications.
The lesson
As contracting authority: when imposing maximum unit prices, conduct and document a prior cost analysis. Do not simply copy prices from previous specifications. Ensure supporting documentation can be submitted timely in proceedings. As tenderer: do not include unilateral reservations about imposed prices — this leads to substantial irregularity. Instead, challenge the legality of the specifications through judicial review. You may have standing even with an irregular offer if your plea aims to show the contract could not be awarded to anyone under the existing specifications.
Ask yourself
As contracting authority, did I conduct and document a prior cost analysis before imposing maximum unit prices? Did I update prices from previous specifications? Can I produce supporting evidence timely in proceedings? As tenderer: did I include a reservation that makes my offer irregular, when I should have challenged the specifications instead?
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 →