A price review done four weeks after the award decision doesn't count — not even when two offers differ by 5.2 million euros
The Council of State suspends a NIRAS award of €13.8M for radioactive concrete dismantling work because the only trace of a price review on the Best and Final Offers was a Tractebel email dated 29 July 2024 — a month after the award decision of 28 June.
What happened?
NIRAS — the Belgian agency for radioactive waste — launched in October 2022 a tender for the dismantling of activated concrete of building 14 at the Fleurus site (Institute for Radio-elements). Estimated value: €12.5M excluding VAT. The procedure chosen: competitive procedure with negotiation. Only two candidates applied: the temporary association Interboring-Etablissements M.W. and the temporary association Nuvia Structure-Nuvia BE. Both were selected. After negotiations and three addenda, both submitted their Best and Final Offer in April 2024. The gap was spectacular: Interboring offered €18,965,803, Nuvia €13,764,909 — a difference of €5.2M, or 28%. On 29 May 2024, NIRAS drafted the award report. On the regularity check it wrote three lines: offers examined in accordance with articles 33 to 37 of the Royal Decree of 18 April 2017, no irregularity found, offers deemed regular. On 28 June 2024, the board of directors decided to award to Nuvia. Interboring filed an extreme urgency application on 25 July 2024: such a price difference should have triggered a specific price review with justification request. NIRAS's defence pointed to an email from Tractebel-Engie with a comparative table. Problem one: the table was not attached. Problem two: the email is dated 29 July 2024 — four weeks after the award decision. On the last working day before the hearing, NIRAS added missing documents including the detailed Excel table. But the metadata revealed it was created on 25 July 2024 — still well after the award. The Council of State concluded: the file does not show that a proper price review on the BAFOs took place before the award decision. Serious ground, suspension granted.
Why does this matter?
This judgment confirms an iron rule: post factum motivation is no motivation. When a competitor argues in emergency proceedings that no proper price review was conducted, the contracting authority cannot be saved by commissioning an expert report afterward. The substantive duty to motivate requires the administrative file to show the review happened before the award decision — with dated documents proving that timing. For bid managers losing a tender with a large price gap: request the price review from the administrative file and check the dates. For contracting authorities: every price review on BAFOs must sit dated and in writing in the file before the award decision is signed off.
The lesson
As contracting authority awarding with a large price difference between the winning offer and the runner-up (here 28%), ask yourself one simple question: does my administrative file contain a dated document from before the award decision that shows I carefully reviewed the BAFO prices? No document? Your award won't hold — not even if you later have an expert confirm that the prices were fine.
Ask yourself
You've awarded to the lowest bidder with a price difference of more than 10-15% against the second: can you point to a dated document in your file within five minutes (internal note, spreadsheet, email to an expert, report) showing you reviewed the BAFO prices before the award decision? If not, reconsider — an emergency suspension is realistic.
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 →