Optimistic soil reuse (60%) without screening or soil improvement costs does not justify abnormally low earthworks prices
The Council of State rejects the challenge against the exclusion of a tender for sewer and road works because the price justification for the total price and eleven earthworks items was rightly rejected: the tenderer assumed an insufficiently substantiated 60% soil reuse rate without costs for screening or soil improvement.
What happened?
CV Fluvius System Operator tendered sewer and road works in Harelbeke via open procedure with mixed pricing (partly lump sum, partly price list) and price as sole award criterion. Four tenders were submitted. After arithmetic correction, BV W. was the lowest at EUR 6,838,923 excl. VAT, against an estimate of EUR 6,810,258 incl. VAT. The second tenderer (NV S.) bid EUR 8,274,910. BV W.'s total price was more than 15% below the average, triggering mandatory price investigation under Article 36(4). The engineering consultancy also identified thirteen presumably abnormally low unit prices (eleven earthworks posts) and two presumably abnormally high. Price justification was requested for the total price and fifteen unit prices. The core dispute concerned the earthworks posts. The specifications required that screening of soils with more than 25% stones and any soil improvement had to be included in the unit prices for removal and processing of surplus soil. BV W. adopted a fundamentally different approach from other tenderers: it assumed maximum soil reuse of 60%, included no costs for screening or soil improvement, and stated that the soils were predominantly sandy. In the supplementary inquiry, BV W. acknowledged that 'replacing non-reusable soil can in principle be carried out without significant additional cost' — wording the consultancy read as a reservation for additional costs. The consultancy rejected the justification for the total price and eleven earthworks posts. Concerns: the 60% reuse rate was unsupported by soil surveys, no screening costs were included despite stone remnants in certain soil layers, the selective excavation without contamination from rubble was too optimistic, and the subgrade methodology was unrealistic. The justification for the two abnormally high posts and two other abnormally low posts (553 and 581) was accepted. BV W. raised two grounds. The first had two elements: (1) the contracting authority misread BV W.'s wording as a 'reservation', and (2) the rejection of the price justification was based on incorrect facts. The Council first addressed element (2) and rejected it: the authority had broad discretion, the consultancy had substantiated its assessment, and the tenderer improperly reversed the burden of proof — the tenderer bears the burden of demonstrating the normality of its prices. Regarding element (1) (reservation), the Council held this was a superfluous ground: since the rejection of the price justification for total price and eleven unit prices remained intact, BV W. had no interest in challenging the reservation ground. The second ground — against the award decision itself — was also rejected: a tenderer whose offer was rightly excluded has no standing to challenge the award to another tenderer.
Why does this matter?
This ruling illustrates the strict scrutiny of price justifications for earthworks posts. A tenderer who assumes a high soil reuse rate without substantiation through soil surveys or other objective evidence, and who excludes screening and soil improvement costs that the specifications require to be included, risks having its justification rejected. The burden of proving the normality of presumably abnormal prices lies expressly with the tenderer — vague generalities do not suffice. The ruling also confirms the broad discretion of contracting authorities in accepting or rejecting price justifications, and the principle that challenging a superfluous ground cannot lead to annulment.
The lesson
As a tenderer: substantiate soil reuse assumptions with objective evidence — soil surveys, lab analyses, documented experience on comparable sites. Always include screening and soil improvement costs in your unit prices when the specifications require it, even if you expect reuse is feasible. Avoid wording in your price justification that could be read as reserving additional costs. Know that you bear the burden of proof for the normality of your prices. As a contracting authority: an optimistic price justification without objective substantiation is sufficient ground for rejection.
Ask yourself
Does your price justification for earthworks posts rely on objectively substantiated soil reuse assumptions? Have you included screening and soil improvement costs, even if you expect minimal need? Does your justification contain wording that could be read as reserving additional costs? As a contracting authority, can you correctly place the burden of proof on the tenderer?
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 →