One failed price justification is enough — everything else becomes irrelevant
The Council of State rejects a contractor's claim after its tender was declared irregular due to abnormally low unit prices — because the price justification for two undisputedly non-negligible items was already insufficient on its own, all other challenges became moot.
What happened?
The municipality of Anderlues launched an open procedure for the renovation of Rue Cardinal Mercier: sewerage and full road reconstruction, estimated at €1,858,726 excluding VAT. Award criterion: price only. Two tenderers submitted bids. SA Travexploit offered the lowest price. The municipality conducted a two-phase price investigation. First, it requested clarification on seven unit prices. Two were accepted; five appeared abnormally low and triggered a formal justification request. After analysing the justification, the municipality found the prices remained abnormally low, declared the tender irregular, and awarded the contract to SA Wanty at €1,683,161.95 excluding VAT. Travexploit raised three grounds before the Council of State in extreme urgency proceedings. The first concerned the competence of the municipal college — rejected because the approval of the minutes of the December 30 session by a differently composed college on January 6 does not affect the original decision. The second and third grounds formed the core. The municipality used two criteria to classify items as 'non-negligible': items exceeding 1% of the total amount, and items susceptible to strong quantity variations. Travexploit challenged the second criterion and its application to items 72, 108 and 125. However, the Council first examined the third ground, which challenged the substantive assessment. For items 92 and 93 — whose non-negligible character was not disputed — the Council found Travexploit's criticism failed. Citing a supplier price without naming the supplier was legitimately considered insufficient. Performance data presented in the appeal but absent from the original justification could not be held against the authority. And the objection about using one instead of two roller compactors was not rebutted. Because the price assessment for items 92 and 93 stood, and those two items alone sufficed to declare the tender irregular, all challenges regarding other items became moot. The second ground likewise lost all relevance.
Why does this matter?
This ruling illustrates a critical strategic reality in abnormal pricing procedures: it suffices for the contracting authority to have validly rejected the price justification for one non-negligible item to declare the entire tender irregular. All other challenges then become moot. Anyone contesting a price investigation must therefore first break the strongest link in the authority's reasoning — not the weakest.
The lesson
Treat every price justification like an exam where you must pass every section. One fail on a non-negligible item is enough to sink your entire tender — and then all your other arguments become irrelevant. Name your supplier. Include performance data in your justification, not just in your appeal. And if you're litigating: aim at the items where the authority's reasoning is strongest, because only if you can overturn those will the rest matter.
Ask yourself
Submitted or reviewing a price justification? Check: do you name your suppliers? Do you substantiate work output rates with concrete figures that are in the file — not just in your head? And if you're going to court: are there items whose non-negligible character you don't dispute and for which the authority's reasoning is solid? Then everything else becomes a rearguard action.
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 →