'Prices have been checked and deemed normal' is not motivation — confidentiality is no alibi for silence on price review
The Council of State suspends the award of a €3.5M debt collection contract by SWDE and CILE to bailiff firm Étude Bordet, because the contracting authority detected apparently abnormal prices in six of seven bids but merely included a boilerplate phrase in its award report ('prices deemed normal and acceptable'), and additionally gave four bids an identical 38/40 score on methodology with identical descriptions — without demonstrating why these bids could not be distinguished.
What happened?
SWDE (Walloon Water Company) and CILE (Liège Intercommunal Water Company) jointly tendered the subcontracting of both amicable and judicial recovery of their water bill debts — a 3-year base contract with a 5-year extension option, totaling approximately €3.5M excl. VAT. The procedure was a negotiated procedure with prior call for competition in the special sectors (article 120 of the Public Procurement Act 2016). Seven candidates were selected and submitted offers by 26 February 2024. Two award criteria: price, and 'Quality of the proposed recovery methodology'. During price review, SWDE detected suspicious prices in all seven bids: for Étude Bordet (the eventual winner) even most items AND the total amount; for the second-ranked bidder several items; for the others — including Venturis — also several items or the total. Under article 44 of the Royal Decree of 18 June 2017, all seven were asked to justify their prices. On 28 June 2024, SWDE's board awarded to Étude Bordet for €3,494,070.40 excl. VAT (options and extension included), and excluded Iuris-Link (which admitted an error in its pricing). Venturis filed an extreme urgency application on 10 July 2024 with two pleas. First plea, first branch: lack of motivation on price review. The award report merely said: 'pursuant to art. 84 […], prices have been verified and deemed normal and acceptable'. The price analysis annex was not disclosed, citing confidentiality. For six of seven bids, a bare sentence thus justified accepting apparently abnormal prices — without any indication of which items were suspicious, what justifications were received, and what reasoning led to acceptance. Second plea: on the quality criterion 'methodology', the four best-ranked bids received an identical score of 38/40 based on completely identical descriptions. The Council of State found both pleas serious. On price review: article 84 of the Procurement Act combined with article 44 of the Royal Decree requires a concrete and effective examination of price justifications. The broad discretion entails an extended obligation of motivation. Motivation may be brief for confidentiality reasons, but not 'excessively laconic' — it must allow verification that the authority analyzed the justifications carefully AND why they were accepted. The actual sentence is pure boilerplate. Worse: even the confidential price analysis did not contain an appreciation of ALL justifications — for several items SWDE merely summarized the justifications without evaluating them. The argument that certain items were 'negligible' doesn't change this: once you ask for justifications, you must analyze them. On the identical 38/40 score: when all best bids receive the same score, motivation must allow understanding why that equality exists and why the bids could not be distinguished. The report merely says descriptively 'methodology meets expectations', repeated for each bid, without identifying strengths and weaknesses. The rebuttal in the statement of defense that bids were 'globally similar' (implying differences did exist) is not in the report itself. Balance of interests: SWDE identifies no negative consequences of suspension. Both pleas serious. AWARD DECISION SUSPENDED. Immediate execution ordered.
Why does this matter?
This ruling is an essential lesson on motivation duties during price review and on qualitative criteria — two areas where confidentiality is often invoked to keep motivation brief. The Council draws a clear line: confidentiality is not a carte blanche. An authority that initially detects six of seven bids as apparently abnormal must — even if details stay confidential — indicate in the award report the 'gist' of the difficulties, justifications and reasoning. 'Prices are normal and acceptable' is an empty sentence. For bid managers challenging a competitor: always check the award report on price review — if it contains only boilerplate despite clear price differences versus previous contracts or among bidders, you have a strong plea. Second key lesson: when multiple bids receive identical scores on a qualitative criterion, this must be explicitly motivated. Copying the same paragraph for each bid does not qualify. For contracting authorities this is an urgent call to revise award reports: replace boilerplate with concrete, individualized motivation, even if some details must remain confidential.
The lesson
As contracting authority: when you detect prices as apparently abnormal and request justifications, your award report must show — per bidder concerned, anonymized or not — which items were suspicious, what the essence of the justification was, and why you accept (or reject) them. A general phrase 'prices are normal and acceptable' is a boilerplate that makes your decision vulnerable to suspension. When multiple bids receive the same score on a qualitative criterion: explicitly motivate why you consider them equivalent and, where possible, list strengths and weaknesses per bid. As bidder: check the award report on whether the price review goes beyond boilerplate. If competitors went 15-30% below previous contract levels without the report explaining it, you have a serious plea to suspend.
Ask yourself
As contracting authority: does your award report really say more than 'prices are normal and acceptable'? Do you have an individual appreciation per bidder who had to submit justifications, even just one paragraph? Do you provide a comparative analysis for identical qualitative scores, or do you paste the same paragraph everywhere? As bidder: look in the award report for per-bidder appraisals of price justifications. If absent, you have material for an extreme urgency challenge. Also: are scores on qualitative criteria concretely motivated or generically copied?
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 →