Annulment of security works award for Fedasil building: double motivation defect — unjustified decision to question applicant but not chosen tenderer, and inadequate motivation for rejecting price justification
The Council of State annuls the award of security works at a Fedasil building in Brussels for two interrelated reasons: the decision to request price justification from the applicant but not from the chosen tenderer (whose total price differed by only €2,060) was not validly motivated, especially since the applicant's total price did not exceed the 15% threshold; and the award report's assessment of the price justification was limited to a general formula without substantively addressing the concrete justification elements — a posteriori motivation in the statement of defence cannot remedy this defect.
What happened?
The Buildings Agency issued an open procedure for security works at a Fedasil building in Brussels, with price as the sole criterion. Eleven tenders were submitted. Three tenderers, including the applicant B.B.A. (€69,978 incl. VAT), were asked for price justification for seemingly abnormal unit prices. The chosen tenderer D. (€72,162 incl. VAT — only €2,060 more) was not questioned. B.B.A. provided detailed justification per post including working method, materials (plywood specifications at €14.5/m²), personnel deployment, and planning. The award report merely summarized the justification and concluded with a general formula that the elements 'are not of such nature as to explain the abnormal unit prices'. The Council found two defects: (1) B.B.A.'s total price did not exceed the 15% threshold under Article 36 §4, making the basis for questioning invalid; and (2) the assessment of the price justification was a mere general formula without substantive engagement with the concrete elements. Concrete motives were only provided in the statement of defence — inadmissible a posteriori motivation. Award annulled.
Why does this matter?
This ruling establishes two fundamental requirements for price investigations: the decision to question certain tenderers but not others must be validly motivated when total prices barely differ; and the assessment of price justification must substantively address the concrete elements provided, not merely summarize them followed by a general conclusion. A posteriori motivation cannot cure this defect.
The lesson
As authority: when assessing price justification, take a substantive position on each concrete element in the award report. Avoid general formulas. Be consistent: if two total prices barely differ, it's hard to justify questioning one but not the other. Verify the 15% threshold calculation. As tenderer: provide concrete justification per post. Check whether the 15% threshold was correctly applied to you and whether the chosen tenderer was in the same position.
Ask yourself
As authority: is the 15% threshold correctly calculated and applied? Is the decision to question some tenderers but not others consistently motivated? Does the award report contain a substantive per-post assessment? As tenderer: does my total price actually exceed the 15% threshold? Was the chosen tenderer similarly questioned?
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 →