Rejection of extreme urgency suspension against irregularity declaration for framework agreement bank works Resilient Westhoek — price justification rightly rejected due to missing overhead on study portion, unsubstantiated unit prices and post factum justification — negligible items correctly delineated using 0.25% threshold
The Council of State rejected the extreme urgency suspension claim by TM B.-G.D. against the Vlaamse Waterweg's declaration of their offer for the 'Resilient Westhoek – Bank Works' framework agreement (€30 million) as substantially irregular, as the authority did not exceed its assessment margin: the 0.25% threshold for negligible items was carefully determined, the grounds for rejecting the price justification were sound, and arguments not included in the actual price justification were post factum justifications the authority need not consider.
What happened?
The Vlaamse Waterweg tendered through an open procedure a framework agreement for bank works in the Westhoek region (€30 million, 4 years). Five tenders were received. The Technical Support unit (ATO) identified apparently abnormal prices and lowered its screening threshold from 1% to 0.25% (covering 74.6% of the total offer). TM B.-G.D. was asked to justify 16 specific items. Their justification was rejected on four grounds: missing overhead on the study portion, unsubstantiated unit price for sandy fill, no numerical basis for subcontracting costs for cast asphalt, and missing pontoon costs. The offer was declared substantially irregular. The Council held that the 0.25% threshold was carefully applied using average prices across all tenderers, the tenderer bore the burden of proof, and arguments first raised in the application were post factum justifications.
Why does this matter?
This ruling is a key reference for price investigation in public procurement. It clarifies that the authority has broad discretion in defining negligible items, a mathematical criterion is acceptable, the calculation basis is average prices across all tenders (not the tenderer's own price), price justifications must be concrete and substantiated, and arguments not included in the original justification are post factum and need not be considered.
The lesson
As a contracting authority: establish clear mathematical criteria for negligible items using average prices. As a tenderer: take price justification requests very seriously — provide concrete, numerically substantiated explanations. Include all special circumstances in the justification itself, not later in court proceedings. If you fail to challenge one ground that can independently sustain the irregularity, your remaining complaints become moot.
Ask yourself
As a contracting authority: have you established a transparent criterion for negligible vs. non-negligible items? Is the calculation basis objective and equal for all? As a tenderer: have you concretely substantiated all apparently abnormal prices? Have you explicitly mentioned special circumstances in your price justification?
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 →