A mere price confirmation does not constitute an adequate price investigation when the tender price is significantly lower
The Council of State suspends the award of a transactional printing contract because the contracting authority failed to conduct an adequate general price investigation on the significantly lower total price of the chosen tenderer, and limited itself to a meaningless price confirmation for a remarkably low unit price instead of initiating a special investigation into abnormal prices.
What happened?
The FPS Finance, as designated manager, launches a joint contract for printing and enveloping transactional printed matter. Price weighs 95 out of 100 points. Three regular tenders are received. The chosen tenderer's total price is more than 24% below the applicant's and more than 36% below the third tenderer's. For the post 'ready-to-send documents in C5/C6 envelopes' — a major post with an estimated volume of 35 million units per year — the chosen tenderer offers a unit price significantly below the estimate and less than half the unit prices of the other tenderers. The contracting authority merely asks the chosen tenderer to confirm this price, which they do with a brief 'we confirm the prices'. The award report concludes that all prices are normal. The applicant files for suspension.
Why does this matter?
This judgment clarifies the relationship between the general price investigation (Art. 35 Royal Decree 2017) and the special investigation into abnormal prices (Art. 36 Royal Decree 2017). The Council holds that when a tenderer's total price is significantly lower than the other tenders and the estimate, this must at least raise some suspicion and prompt an adequate general price investigation. A comparison with prices from a two-year-old contract is not a reliable benchmark, especially when it contains material errors. For a specific post significantly below the estimate and below half of the other unit prices, a mere request for price confirmation ('is this really your price?') with a 'yes' answer does not constitute an adequate price investigation. The contracting authority should have initiated the special investigation into abnormal prices.
The lesson
A mere price confirmation is not a price investigation. When a unit price or total price is significantly lower than the estimate and the other tenders, the contracting authority must request concrete, verifiable elements justifying the normality of the price. A comparison with historical prices from a previous contract is not a reliable alternative to a current estimate. When a strikingly different price is not adequately explained by the general price investigation, the special investigation into abnormal prices must be initiated.
Ask yourself
Does your price investigation merely consist of asking for confirmation of the quoted prices? Have you compared total prices and individual unit prices with the estimate and other tenders? Do you have concrete, verifiable elements justifying the normality of significantly lower prices?
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 →