'Our subcontractor has nearly 60 years of experience' does not justify a paint output of 135 m²/day
The Council of State rejects COMABAT's suspension request because the social housing company Sambre et Biesme rightly found the offered paint prices abnormally low: the subcontractor's claimed output of 135 m²/day was more than double what both an internal technical manager and an independent architect considered realistic.
What happened?
On 22 May 2025, the social housing cooperative Sambre et Biesme launches an open-procedure framework agreement for renovation of occupied and vacant dwellings. Company COMABAT submits an offer. During price verification on 11 August 2025, Sambre et Biesme first asks for additional information (Art. 35 RD 18 April 2017) on three painting items: item 237 (water-based paint on walls), 238 (on ceilings) and 239 (on wooden surfaces). COMABAT replies on 19 August with three documents: a breakdown of its own prices, the full price offer from its subcontractor, and that subcontractor's price breakdown. On 28 August, Sambre et Biesme awards to SOTRELCO. The Council of State suspends that decision on 21 October 2025 (judgment no. 264.595), and Sambre et Biesme withdraws the award on 4 November. On 7 November, it requests a full price justification (Art. 36 RD 18 April 2017). COMABAT resubmits exactly the same three documents. On 22 January 2026, Sambre et Biesme awards again to SOTRELCO and excludes COMABAT on three independently sufficient grounds: (1) COMABAT provided nothing new — it is logically impossible to dispel an abnormality presumption with the very documents that created it; (2) the prices for items 237 and 238 are far below three authoritative price publications; (3) the 135 m²/day output per paint coat claimed by the subcontractor is unrealistic. The housing company's technical manager puts the usual output at 80-100 m²/day. An independent architect confirms the commonly observed outputs are 8-12 m²/hour (maximum 96 m²/day for one coat, maximum 48 m²/day for two). COMABAT challenges each ground. Against ground 2: the other bidders' prices also deviate widely from the references — if those are accepted, why not hers (equal treatment)? And in another market awarded the same day ('Cayats'), a nearly identical price was accepted without questions. Against ground 3: the subcontractor is a 'reliable and recognised' company with nearly 60 years of experience. The Council holds firm. Ground 2: COMABAT's factual premise fails — another bidder (ID BAT) was also found abnormal, while SOTRELCO and SORWA with prices near the references raised no questions. The 'Cayats' market is a regular (non-framework) contract with different technical clauses and no inter-site travel — not comparable. The authority's choice to rely on published references rather than the average of received offers falls within its broad discretion. Ground 3: the internal manager's and the architect's opinions are coherent, documented and mutually confirming. A subcontractor being 60 years old proves nothing per se. COMABAT provides no concrete substantiation of the 135 m²/day output — and since grounds 2 and 3 each independently suffice, the Council does not even examine ground 1. The sole plea is prima facie not serious. Request rejected. €996 in costs (court fee, contribution, procedural indemnity) against COMABAT.
Why does this matter?
This decision pinpoints where the burden of proof lies in price justifications. When the authority finds your offer suspicious: resending the same documents is not a justification. You must lay out the underlying economics step by step: labour cost × output × material price + margin. And you must genuinely demonstrate why your output diverges from what is usual. A reference to another contract where the same authority accepted your low price does not help if the markets are not comparable — and 'no equality in illegality' applies fully.
The lesson
When you receive an Art. 36 price justification request: do not return the documents you already supplied under Art. 35. Build a new, more detailed justification that (1) substantiates your output numerically, (2) explains any deviation from standard references, and (3) presents not only your subcontractor's name but their concrete calculations. 'He has 60 years of experience' is not an argument; it is an introduction.
Ask yourself
Did you recently submit a price justification? Next to each number, write the source: 'output x m²/day → based on [publication or internal time measurement]', 'material price → offer no. X from supplier Y'. If you cannot perform that source check in under an hour, your justification is too thin.
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 →