Rejection of suspension request against exclusion of tender for Defence pipeline works — abnormally high unit price for protection plates (approximately three times higher than competitors) lawfully established
The Council of State rejects the emergency suspension request by SRL TEGEC against the Belgian State's (Defence) decision to exclude its tender for protection and restoration works on pipeline 4 Chièvres-Florennes as substantially irregular due to abnormally high unit prices, the reasoning on the abnormal character of the price for item C.02.1 (supply and installation of protection plates — approximately three times higher than other tenderers) being relevant, adequate and admissible, so the remaining grounds did not need examination for lack of lésion.
What happened?
The Belgian State (Defence) launches an open procedure for protection and restoration works on pipeline 4 on the Chièvres-Florennes route. TEGEC submits a tender. Defence questions several apparently abnormal unit prices and, after reviewing TEGEC's justifications, declares the tender substantially irregular on multiple grounds: missing documents, abnormal prices for items A.16.1-A.16.3, B.2.2.2.1, and C.02.1. The contract is awarded to SA DENYS (intervening party). TEGEC raises two pleas: the first (four branches) challenges the exclusion on grounds including a missing synthesis note, inadequate reasoning, and abnormal price findings; the second argues the specifications are themselves illegal. The Council examines the abnormal price findings first, noting the contracting authority's broad discretion. For item C.02.1 (protection plates), the cost was approximately three times that of competitors and TEGEC failed to identify factual errors in Defence's reasoning. This single ground sufficing, the remaining branches and second plea are inadmissible for lack of lésion.
Why does this matter?
This judgment confirms two key principles: the contracting authority has broad discretion in assessing price justifications, and the tenderer must successfully challenge all grounds for exclusion — if one self-supporting ground stands (here: the abnormal price for item C.02.1), the remaining grievances lose their relevance for lack of lésion.
The lesson
As a tenderer: when your offer is excluded on multiple grounds, you must successfully challenge all of them. Ensure your price justifications address the comparison with other offers, not just your own methodology. As a contracting authority: one solidly motivated abnormality ground can support the entire exclusion.
Ask yourself
As a tenderer: did your price justification address the comparison with other offers? Did you challenge all exclusion grounds? As a contracting authority: is at least one abnormality ground sufficiently concrete and comparatively substantiated?
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 →