Road maintenance Baelen: price justification based on subcontractor offer for different quantities is manifestly unreasonable
The Council of State annuls the award of a road maintenance framework agreement because the contracting authority could not accept the winning tenderer's price justification for three bituminous surface treatment items — a mere reference to a subcontractor's offer without detailed substantiation is insufficient, and the subcontractor calculated prices based on 1,000 m² while the bill of quantities specified 100 m², meaning the unit prices for the bill quantities were not justified.
What happened?
The municipality of Baelen launched a framework agreement for road maintenance (2024-2028). The unit prices of SRL Pierre Frère for posts 83, 84 and 85 (bituminous surface treatments) deviated 73-74% below the average. The overall offer was 20.5% below average. Pierre Frère's price justification consisted solely of a subcontractor's offer plus a profit margin. However, the subcontractor calculated prices based on 1,000 m² while the bill of quantities specified only 100 m² as presumed quantities. The municipality accepted this, arguing the calculation was normal since such work is not performed on surfaces as small as in the bill, and that presumed quantities are purely fictitious. The contract was awarded to Pierre Frère. After suspension was ordered by a prior ruling, the Council proceeded to annul the award. The municipality filed no response on the merits. The Council found a manifest error of appreciation on two grounds. First, simply referring to a subcontractor's price plus margin is insufficient justification — the Report to the King confirms this. The subcontractor's offer contained no explanation beyond unit prices and the quantity used for calculation. Second, the subcontractor calculated on quantities (1,000 m²) different from the bill (100 m²), which cannot justify unit prices for the bill quantities, even if those quantities are fictitious. Quantity directly impacts unit price. Moreover, the claim that such work isn't done on small surfaces was unsupported and contradicted by the authority's acceptance of the applicant's justification for the same post based on 100 m².
Why does this matter?
This ruling clarifies two fundamental aspects of abnormal price examination. First, a price justification consisting solely of a subcontractor's offer plus margin, without detailed price breakdown, is insufficient. Second, even though presumed quantities in the bill are fictitious and serve only for comparison, unit prices must be established and justified based on those quantities. A tenderer cannot justify prices based on calculations for ten times the bill quantity. The ruling also highlights the importance of consistency in the authority's assessment.
The lesson
As a tenderer: a price justification cannot merely pass through a subcontractor's offer plus margin — you must provide a detailed breakdown. Ensure your subcontractor's calculations use the same quantities as the bill. As a contracting authority: do not accept justifications that are merely subcontractor pass-throughs. When quantities differ between the justification and the bill, this requires further investigation. Be consistent across tenderers.
Ask yourself
As a tenderer: is your price justification self-supporting or does it merely reference a subcontractor? Do the quantities match the bill? As a contracting authority: have you verified quantity consistency? Is your assessment consistent across all tenderers?
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 →