Reopening of debates after founded ground on absence of price verification in milking robot award — tenderer's offer rightfully excluded for prohibited variants, but interest in price verification ground exists despite exclusion of own tender
The Council of State declared the ground concerning the absence of price verification founded in the annulment proceedings by SRL BASTIEN against the award by the Province of Hainaut of a milking robot contract to the sole regular tenderer, and reopened the debates for examination of the first ground — the applicant had interest in the price verification ground despite the exclusion of its own tender, as the absence of verification could have led to the exclusion of the chosen tenderer's offer as well.
What happened?
The Province of Hainaut conducted an open procedure for a milking robot. The specifications contained detailed technical requirements including a weighing system under the robot, steam disinfection, and an oil-free vacuum pump. Variants were expressly prohibited. Four tenders were received; three were declared null. BASTIEN's tender (€155,848 incl. VAT) was excluded for two substantive irregularities: offering a BCS camera instead of the required weighing system, and offering an oil vacuum pump instead of the required oil-free one. The contract was awarded to STR, the sole regular tenderer, for €155,750 excl. VAT. The Council had previously suspended the decision in 2021. In the annulment proceedings, the Council rejected the inadmissibility exception: the applicant need only show that the alleged violations risked causing her prejudice. On the second ground — absence of price verification — the Council found it founded: nothing in the administrative file or the contested decision showed that a price verification had been carried out. The mere mention that the offer was 'regular' did not constitute proof of price verification. The circumstances invoked by the authority (conforming execution, proximity to estimate, single regular offer) were insufficient. The Council reopened the debates for examination of the first ground, as it could impact the pending damages claim.
Why does this matter?
This ruling confirms that the price verification obligation under article 84 of the 2016 Act requires a concrete and effective verification whose existence must be apparent from the award decision or administrative file. A general mention that an offer is 'regular' does not suffice. It also clarifies that a tenderer whose offer was excluded can still have interest in a ground challenging the absence of price verification, as this could lead to the exclusion of the chosen tenderer's offer as well.
The lesson
As a contracting authority: expressly document the price verification in the examination report or award decision. A generic mention that an offer is 'regular' is not sufficient. As a tenderer: even when your own offer was excluded, consider whether grounds targeting the overall award procedure — such as the absence of price verification — may serve your interests.
Ask yourself
As a contracting authority: does your examination report or award decision show that you actually carried out a price verification? Did you not merely state that the offer was 'regular'? As a tenderer: have you checked whether the authority correctly performed the price verification, even if your own offer was excluded?
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 →