Rejection of price justification for 42.86% cheaper geophysical survey tender withstands marginal review
The Council of State rejects the emergency suspension request against the declaration of substantial irregularity of a tender for geophysical soil research, ruling that the contracting authority could reasonably find that the price justification — consisting of general efficiency factors and a mere cost breakdown per item — did not adequately rebut the apparent abnormality of a total price 42.86% below the average.
What happened?
The Agency for Immovable Heritage launches a framework agreement for geophysical soil research through an open procedure, with price (60%), team composition (30%) and vision (10%) as award criteria. Five tenders are received. The applicants' tender (€138,563 incl. VAT) deviates 42.86% from the average of the other tenders (€242,466). A price justification is requested. The applicants cite efficiency, modern equipment, economies of scale and mobile setups as explanations, supplemented with a cost calculation per item. The agency finds these factors are not distinguishing compared to competitors, and additionally notes that the applicants — unlike virtually all other tenderers — do not differentiate prices based on mobile/non-mobile execution or low/high resolution. The tender is declared substantially irregular and the contract is awarded to W. The applicants also allege abuse of power based on the course of three successive award procedures.
Why does this matter?
This judgment illustrates the contracting authority's discretion in evaluating a price justification (Art. 36, § 3 Royal Decree 2017). The Council confirms that a mere cost breakdown per item — showing hourly rate, hours, depreciation costs and profit — without further explanation is insufficient to rebut the apparent abnormality of the total price. The tenderer must concretely demonstrate exceptional circumstances that explain the large price difference. The judgment also shows that different treatment regarding price inquiries is not necessarily unlawful when the situations are objectively not comparable (16% vs. 42% deviation), and that the contracting authority is not required to analyse each individual cost calculation in detail if the general justification has already been found unconvincing.
The lesson
As a tenderer: a price justification that merely refers to efficiency, modern equipment and economies of scale is insufficient when these factors also apply to other tenderers. Concretely demonstrate which exceptional circumstances justify your lower price. In particular, explain why your pricing structure deviates from the market standard (e.g. equal prices for mobile/non-mobile or low/high resolution). As a contracting authority: you may assess whether the price justification is convincing based on the general factors, without being required to analyse each individual cost calculation.
Ask yourself
Does your total price deviate significantly from the average? Does your price justification contain concrete, distinguishing elements demonstrating why you can be cheaper than the competition? Can you explain why your pricing structure may deviate from market standards?
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 →