Setting the threshold at 2% and then ignoring it: the Council rebukes the Walloon Region
The Council of State suspends the award of a dam renovation study because the Walloon Region treated posts worth 0.57% and 0.76% of the tender as non-negligible, despite having defined non-negligible posts as those exceeding 2% of the total tender amount — a clear violation of its own rules.
What happened?
The Walloon Region (SPW) launched an open procedure with European publication for a study on the renovation and automation of lock-weir dams on the Haute-Sambre. The contract included a firm tranche and several conditional tranches, with award based on best price-quality ratio. The estimated budget was approximately €12 million including VAT. Three firms submitted tenders: Tractebel Engineering, Sweco Belgium, and the joint venture Greisch Ingénerie – SBE. Tractebel's offer totalled €9,928,246 excluding VAT — closest to the authority's reference amount. In the award decision, SPW described its price verification methodology. It defined non-negligible posts as those 'whose amount exceeds 2% of the total of the offer'. These posts would be systematically analysed. Additionally, all posts would be checked for speculation. SPW asked Tractebel to justify the prices for three posts — technical and financial assistance during works execution in conditional tranches 1, 2 and 3 (posts 114, 240 and 366). Tractebel's amounts were €180,135 (1.81%), €56,811 (0.57%) and €75,724 (0.76%) of the total offer respectively. All three fell below SPW's self-defined 2% threshold. After receiving the justification, SPW declared Tractebel's offer substantively irregular due to abnormally low prices for posts 240 and 366. The contract was awarded to Greisch – SBE. Tractebel sought suspension under extreme urgency. Its core argument: SPW violated its own methodology. It defined non-negligible posts as those above 2% of the offer, yet treated posts at 0.57% and 0.76% as non-negligible. According to the Report to the King accompanying article 36 of the 2017 Royal Decree, an offer can only be rejected for abnormal prices on non-negligible posts. SPW defended with two arguments. First: the 2% threshold should be calculated against the authority's estimate, not the individual offer. The posts were each estimated at €360,000, representing 3.64% of the estimate — above the threshold. SPW highlighted the circular reasoning risk: if the threshold is calculated on the offer amount, a tenderer could make a post negligible by submitting an absurdly low price. Second, subsidiarily: even if the posts were negligible, the offer was substantively irregular under article 76 because Tractebel omitted certain services (reception and testing for commissioning, architect services for post 366). The Council ruled on the first point that SPW was bound by its own definition. The award decision used the phrase 'c'est-à-dire' — 'that is to say' — to define non-negligible posts as those above 2% 'du total de l'offre' — of the offer amount. This wording left no room for a different reading. The Council acknowledged the theoretical risk SPW raised but held that this risk stemmed from SPW's own choice of definition. SPW could have used a different definition. It did not. On the second point — the subsidiary technical irregularities — the Council held that SPW had not declared the offer irregular on those grounds during the award procedure. The Council would not declare a tender irregular on a ground the authority itself had not invoked. Moreover, Tractebel substantively contested the alleged omissions. Suspension was ordered.
Why does this matter?
This is one of the rare cases where the Council of State actually grants suspension under extreme urgency. The ruling makes clear that the patere legem principle — abide by the rules you set yourself — applies not only to specifications and award criteria but also to the methodology the authority establishes in the award decision itself. An authority that defines a 2% threshold cannot then treat posts at 0.57% and 0.76% as non-negligible, however logical its substantive arguments may be. The Council acknowledges the intellectual force of SPW's circular-reasoning argument but applies the law as written: the authority is bound by its own words, not by what it intended to write. Equally notable is the rejection of the subsidiary defence: an authority cannot raise new irregularity grounds in proceedings before the Council that it did not invoke during the award procedure.
The lesson
As a contracting authority: formulate your price verification methodology with surgical precision. When defining a threshold to distinguish negligible from non-negligible posts, consciously choose the reference value: the offer amount, the estimate, or the average of offers. Each choice has consequences. The phrase 'of the total of the offer' instead of 'of the estimated market amount' made the difference between winning and losing here. As a tenderer: read the methodology in the award decision or specifications to the letter. When the authority violates its own rules, that is a powerful ground — but you must cite the exact text and demonstrate the deviation. Tractebel did precisely that. Also note the subsidiary defence: an authority that raises new irregularity grounds in its defence that were not in the award decision will fail. The Council reviews the legality of the decision taken, not of a hypothetical decision the authority could have taken.
Ask yourself
As a contracting authority: have you defined the price verification methodology clearly and unambiguously? Is the reference value for your thresholds (offer amount, estimate, average) consciously chosen and consistently applied? If you treat a post as non-negligible, does it actually exceed the threshold you defined? And as a tenderer: did the authority follow its own methodology, or did it deviate without 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 →