When you ask the lowest bidder to justify both total price and three unit prices — and he answers only on the three unit prices
The Council of State suspends an award for 448,857 euros in an open procedure because the authority asked the winner to justify both the total price and three suspect unit prices, the winner justified only those three unit prices, and the authority's decision does not say a word about the missing justification for the total.
What happened?
The French Community tendered the renovation of the playground of Athénée royal Bruxelles 2 (lot 2 – ground works) via an open procedure with price as the sole award criterion. Three bids: NTH Contractors at 448,858 euros (after correction for a material error), Krinkels at position 2, and Melin at 789,437 euros. Average: 643,891 euros. The authority applied an explicit threshold — bids under 85% of the average (547,307 euros) were flagged as suspect of being abnormally low. NTH fell well under that threshold. On 16 October 2025 the authority sent NTH a letter with two distinct requests: justify the total price, which 'appears abnormally low', and justify three specific unit prices (items 33 – concrete, 72 – reclaimed bench, 75 – climbing module). NTH replied on 21 October 2025 — but only on the three unit prices. The total price was not specifically justified. The award decision said nothing about this gap and gave no reason why a justification of three unit prices should amount to a justification of the whole. Krinkels, ranked second, filed for urgent suspension. The 6th Chamber found the single plea serious. The letter of 16 October 2025 had made two distinct asks. NTH answered only one. The award decision offered no explanation of why the one answer covered the other. The formal reasoning therefore failed to show that the control of the total price was actually effective. No counterweight emerged in the balance-of-interests test. Suspension granted with immediate effect.
Why does this matter?
The ruling cuts sharply into a common abuse of the price justification procedure. Authorities often ask two questions at once — 'justify your total price and these specific items' — and then accept an answer that addresses only the specific items, assuming 'if the parts are normal, the total must be normal too'. The Council of State flatly rejects that shortcut: if you ask for two things, you must get an answer to both, and your decision must show that you tested both answers. Especially relevant whenever a bidder sits below an 85% threshold that you nonetheless wish to be able to award to.
The lesson
As a contracting authority, if you request justification for both the total price and specific unit prices and only receive an answer on the unit prices, you have two options: either formally ask again about the total price (article 36 of the Royal Decree of 18 April 2017 allows this), or expressly motivate in the award decision why the justification of the unit prices is sufficient in this file to also conclude the total price is normal — referring to the supporting elements on which that conclusion rests (e.g. the comparative m² analysis the architect here provided). What will not do: silently assuming one covers the other.
Ask yourself
Did you ask for two separate justifications (total price and unit prices), and did the bidder only answer one of them? Does your award decision contain an explicit paragraph explaining why the given answer also covers the total price? If not: ask again or rewrite your reasoning before awarding.
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 →