Rejection of suspension application: tender for motorway incident management declared substantially irregular after price investigation — 15% discount on maximum price insufficiently justified — no price investigation required for chosen tenderer at maximum price without discount
The Council of State rejected the suspension application by BV G. against the award decision of the Flemish Region (Roads and Traffic Agency) for lot 5 'E313 East' of the F.A.S.T. project (motorway incident management in Antwerp province), because the contracting authority correctly found the tender offering a 15% discount on the maximum price to be substantially irregular after two rounds of price justification, and no abnormal pricing investigation was required for the chosen tenderer who offered no discount on the established maximum price.
What happened?
The Flemish Region tendered motorway incident management (towing) services across five lots in Antwerp province (Project F.A.S.T.). Lot 5 'E313 East' concerned vehicles under 3.5 tonnes. The contract used maximum prices with discount percentage as the sole award criterion. BV G. offered 15% discount, BV S. offered 0%. Initially awarded to BV G. on 15 March 2025, but suspended by arrest 263.234 (8 May 2025) for lack of abnormal pricing investigation. After withdrawal and a two-phase price investigation under article 36 of the Royal Decree of 18 April 2017, BV G.'s justification was found insufficient: hourly rates were undetailed (€32/hour), subcontracting costs were supported only by declarations on honour, and maintenance costs (€300/year per vehicle) were unrealistically low compared to the sector norm (€1,000-1,500/year). The Technical Committee (ATO) confirmed the costs were undervalued. BV G.'s tender was declared substantially irregular and the contract was awarded to BV S. at full maximum price. Both grounds raised by BV G. were rejected: the equality principle argument (higher discounts accepted in other lots/provinces) failed as BV G. did not demonstrate comparable situations, and no abnormal pricing investigation was required for a tenderer offering the maximum price without discount.
Why does this matter?
This ruling clarifies that significant discounts on maximum prices can trigger abnormal pricing investigations, and that price justifications must be detailed and substantiated with hard evidence. It confirms the two-phase approach under article 36 of the Royal Decree. A tenderer offering no discount on the established maximum price need not be subjected to an abnormal pricing investigation.
The lesson
When offering discounts on maximum prices, prepare detailed price justifications with breakdowns of labour costs, social charges, overhead, subcontracting costs (with contracts), and realistic maintenance costs. Declarations on honour alone are insufficient. The fact that higher discounts are accepted in other lots or provinces is not a valid argument.
Ask yourself
Is your price justification sufficiently detailed and substantiated with hard documents? Are your hourly rates broken down into labour costs, social charges, and overhead? Are your maintenance costs realistic compared to market practice?
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 →