A price of €0 is always suspicious, €1 usually isn't — and that difference justifies different investigations
The Council of State rejects the extreme urgency suspension: the fact that Bruxelles-Propreté excluded bailiff M.L.'s bid (with four items at €0) via the strict price investigation of Article 36 and Exelia-Alterius's bid (with €1 and €15 per file) via the lighter verification of Article 35 is not unequal treatment — €0 is, per established case law, always an apparently abnormal price, whereas €1 is not necessarily.
What happened?
In late 2023 Bruxelles-Propreté launched an open procedure for consultancy and debt-recovery contentious management services (specifications BP 22/2209) — estimated at around €268,620 HTVA for two years, with two possible renewals. Award criteria: price and methodology. Two bids: bailiff Étude M.L. (€67,155 TTC) and the Exelia-Alterius/CSMG grouping (€105,754 TTC — a law firm together with a bailiff from Charleroi). On 7 March 2024 the contract was initially awarded to M.L. But Exelia-Alterius complained, and on 10 April 2024 Bruxelles-Propreté withdrew that decision: M.L.'s bid was declared irregular because he had offered unit prices of €0 for four items (RCCI procedure, judicial reorganisations, recovery from former staff, advisory services) — without acceptable justification. An earlier suspension request by M.L. against that withdrawal had already been rejected (judgment 259,817 of 22 May 2024). On 9-11 July 2024 the contract was awarded to Exelia-Alterius. M.L. goes back to Council. His core argument: Exelia-Alterius offered €1/file for the RCCI procedure and €15/file for a summary debate procedure — that is equally abnormal, and the authority should have examined that bid also under the tough Article 36 route. Because Bruxelles-Propreté only applied the 'light' Article 35 verification to Exelia but the strict Article 36 procedure to M.L., similar situations were treated differently. The Council does not follow this. First the method: Articles 33, 35 and 36 of the Placement Decree organise price review in two steps. Step 1 (Art. 35) is mandatory: every bid is checked globally and at unit level, possibly with clarifications requested from the bidder. Step 2 (Art. 36) only follows if actual suspicion of abnormal prices arises. The authority has broad discretion under Article 35. Then the heart of the matter: 'a price of €0 must in principle always be regarded as an apparently abnormal price, which is not the case for a price of €1'. €1/file × 1,000 presumed files = €1,000/year is something — €0/file × any quantity remains €0, and can by definition cover no cost. Exelia-Alterius moreover gave detailed explanations per item (confidential letter of 10 May 2024): the €1 covers only the lawyer's intervention in phase 1 of five stages of the RCCI procedure, all other work being remunerated via the bailiffs' tariff under the Royal Decree of 30 November 1976. For the €15/file item, they explain automated workflows, bundling of files per hearing, and economies of scale. The authority was entitled to accept those explanations without manifest assessment error. That M.L. justified his €0 price by 'global compensation' between items was not accepted, precisely because Article 36 requires each suspect unit price to be motivated separately. Additional argument by M.L. — that Exelia was only questioned after the withdrawal of 10 April 2024 and so 'knew which explanations didn't work' — is rejected: Exelia was asked how it had drafted its bid, which happened well before that withdrawal. A new plea at the hearing on the competence of the author of the act (delegation to the senior civil servant) is held admissible (ordre public) but unfounded: the contract falls within the delegation of Article 8 §1 of the Brussels Government Decree of 29 October 2011 and within the missions of Bruxelles-Propreté (ordinance of 19 July 1990). Suspension rejected.
Why does this matter?
For bid managers wanting to attack competitors on abnormal prices, this is a demanding test. You won't win with 'they also bid something low' — you must show that the authority made a manifest assessment error in accepting that explanation. The Council consistently respects the dividing line between what is marketably explainable (an economy of scale, a bundled workflow, cross-subsidy within a grouping) and what is objectively unworkable (a price of zero). Anyone bidding €0 and justifying it with 'the costs are covered elsewhere' is essentially irregular before verification even begins. For authorities the lesson is equally strict: verifying a unit price means asking for a substantiated explanation per item and analysing it, not a global cost statement across all items.
The lesson
If as a bidder you doubt whether your low unit price is still defensible, run this test before you submit. First question: can I justify this price item by item — not as global compensation, but as a concrete cost calculation for this specific service? Second question: does my explanation actually cover my own cost, or am I letting another item or another contract pay for it? If the answer to question one is no, or if your explanation rests on 'global compensation', the authority's broad discretion will not save you. And above all: never put €0 where a positive price is expected. Under established case law a €0 price is by definition apparently abnormal, regardless of the explanation.
Ask yourself
Do you have a unit price in your bid below 10% of the estimate? Can you, for that item, give a concrete cost structure (hours × rate + overhead + margin) in which every component is positive? If one of those components has to be zero or negative 'because it is paid elsewhere', you have a problem — not at submission, but at price verification.
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 →