Rejection of suspension application: tender rightly excluded as substantially irregular due to abnormal prices for therapy and coaching sessions — price justification insufficiently detailed and concrete — cross-subsidy from subcontractor's portfolio not valid justification
The Council of State rejected the suspension application by SRL Evoluno against the exclusion of its tender and the award by the Federal Pensions Service of a contract for a digital mental wellbeing tool for federal civil servants, because the contracting authority had not committed a manifest error in finding the prices for therapy and coaching sessions (€20 per session, 80% below average) abnormal, as the price justifications were insufficiently detailed and concrete and profitability was only considered at the level of the subcontractor's entire portfolio.
What happened?
The Federal Pensions Service conducted an open procedure for a digital mental wellbeing tool. Evoluno offered €20 per therapy/coaching session, approximately 80% below the average price. After two rounds of price verification (under articles 35 and 36 of the Royal Decree), Evoluno's justifications referred to its subcontractor Workplace Options' unit price of €12 per person and its margin, but did not provide concrete cost calculations. The subcontractor's psychologists/coaches were paid €60-90/hour, but the relationship to the €12 price was not explained numerically. Profitability was considered across the subcontractor's entire portfolio rather than for this specific contract. After an initial decision of 25 August 2025 was withdrawn following an appeal, an identical decision was taken on 20 October 2025 with additional motivation on the non-negligible character of the posts. The Council examined both grounds simultaneously and found neither serious: the posts were correctly qualified as non-negligible (proportional weight, required options, functionally linked to core), and the price assessment was not manifestly erroneous given the 80% deviation and inadequate justifications.
Why does this matter?
This ruling clarifies that price justification must demonstrate concretely and numerically how the tenderer arrives at the offered price in the context of the specific contract. Mere references to a subcontractor's price, margin, experience or portfolio are insufficient. Cross-subsidization from other clients cannot justify abnormally low prices.
The lesson
As a tenderer: when your price deviates significantly from the average, prepare a detailed cost breakdown specific to the contract — not just references to your subcontractor's portfolio. Cross-subsidization is not accepted. As a contracting authority: when qualifying posts as non-negligible, motivate by reference to their proportional weight, character as required options, and functional link to the contract's core.
Ask yourself
As a tenderer: does your price justification contain a concrete, numerical cost breakdown specific to this contract? Or do you mainly refer to your subcontractor's experience and portfolio? As a contracting authority: have you motivated why the relevant posts are non-negligible?
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 →