Two million cheaper is not yet an abnormally low price: why the loser of the Farys water contract gets nowhere with bare assertions
The Council of State rejects the extreme-urgency action against the award by Farys and Creat of a framework agreement for renting water dispensers: the fact that the winner bid 6.5 million euros, well over two million below the applicant, does not suffice to speak of an ‘apparently abnormal price’, because the general price investigation showed lower but acceptable margins, and the applicant stuck to bare assertions without concretely showing that the price could not sustain the contract.
What happened?
The intermunicipal company Farys, together with the central purchasing body Creat, placed a supplies contract in the form of a framework agreement (specifications ALL-25-005) for renting water systems connected to the drinking-water network, with a maintenance contract and the purchase of associated consumables. The framework ran for four years, with individual contracts of five years, twice renewable by one year — up to seven years. An open procedure was chosen, with award to the most economically advantageous regular bid under three criteria: bid price (70%), quality of service (20%) and CSR (10%). Three bidders submitted offers. The total prices were far apart: the winning bidder (bv L.) offered 6,513,663.10 euros, the applicant (nv A.) 8,629,649.14 euros and the third-ranked 10,043,479.60 euros. In the award report of 5 March 2026 the bids were found regular; on price, bv L. obtained 42.85 points against 34.03 for the applicant, which placed the winner on top. The contract was awarded to bv L. The applicant went to the Council of State under extreme urgency, also directing its action against the implicit decision not to award the contract to it. On that last point the Council declared the action inadmissible: a second-ranked bidder seeking suspension of an implicit refusal must show exceptional circumstances pointing to a legal duty to award the contract to it — and even if the winner's bid were irregular, it does not follow that the contract would then automatically go to the applicant, since a renewed price investigation may reach other outcomes. Of the two remaining grounds, the applicant abandoned the first at the hearing. The second concerned the reasoning: the scoring method for the second and third award criteria allegedly evaluated sub-criteria without separate weighting. The Council recalled that an authority has broad discretion to choose its method, provided it correctly maps the qualitative differences, and found the ground not serious. The core lay in the third ground: the alleged lack of investigation into the winner's abnormally low price. The Council set out the legal framework. Article 84 of the Procurement Act and article 35 of the Placement Decree oblige the authority to conduct a general price investigation across all bids, aimed at detecting indications of abnormal prices; only when such indications arise does article 36 create a duty for a special investigation with price justification. Here Farys had found the winner bid ‘significantly lower’ and, on that basis, requested detailed price breakdowns from all bidders. These showed that the cost components (purchase of devices, installation, pick-up, maintenance, interventions) were broadly comparable, but that the winner applied lower margins. The authority considered those lower margins, partly on the basis of its own market knowledge (where margins of 15 to 20% are usual to win new clients), acceptable: both overheads and profitability remained covered. A ‘significantly lower’ price, the Council held, is not the same as an ‘apparently abnormal’ price; the request for clarification fell expressly within the general article 35 investigation, not an article 36 price justification. The applicant did not make plausible that the authority exceeded its discretion: the mere fact that the winner's margin was lower than its own does not suffice as an indication of an abnormal price, and its claim that the costs ‘could not possibly’ be structurally covered remained a bare assertion. The long term was also part of the investigation (clarification on years six and seven, an annual price-revision formula), and the criticism about filter capacity did not belong in a price ground. Neither ground was serious; the action was rejected and the applicant ordered to pay costs (court fee 200 euros, contribution 26 euros, procedural indemnity 770 euros), the intervening party a court fee of 150 euros.
Why does this matter?
Whoever loses a contract to a strikingly cheaper competitor readily reaches for the reproach of the ‘abnormally low price’. This arrest tempers that reflex. The Council confirms the two-step system: the general price investigation (article 35 of the Placement Decree) is always mandatory and aimed at detecting indications; a special investigation with price justification (article 36) is mandatory only once there are concrete indications of an apparently abnormal price. A price that is ‘significantly lower’, or a profit margin lower than yours, is not in itself such an indication — certainly not where the authority has compared the cost components and finds the margins acceptable. For the authority, the reassurance is that a thorough but reasoned article 35 investigation suffices, and that it need not write that investigation out in full in the award report as long as it appears from the file. For the bidder, the warning is sharp: bare assertions and rhetorical questions will not do; you must concretely show that the offered price cannot cover the contractual obligations. And even if you succeed, as second-ranked you do not automatically get the contract.
The lesson
Build a price ground on facts, not on surprise. If you want to challenge the award because the winner is supposedly too cheap, show concretely that its price cannot cover specific contractual obligations — point to specific items, costs or execution risks, not merely to the fact that its margin is lower than yours. Bear in mind that the authority is only obliged to conduct a special price investigation (article 36) when there are indications of an apparently abnormal price; a ‘significantly lower’ price is not automatically that. Do not mix quality criticism (filters, specifications) into a price ground — that belongs to regularity or the quality criterion. And weigh your interest: if you were second, do not merely challenge the award, but substantiate why the contract should go specifically to you — otherwise the implicit refusal decision stays out of reach.
Ask yourself
Suppose you have just lost a contract to a competitor who was substantially cheaper. Can you, apart from your own margin, concretely name which contractual obligation or cost item its price cannot possibly cover — with reference to specific items in the inventory? Or does your case rest on ‘it can't be that cheap’? Did you check whether the authority conducted a general price investigation and requested price breakdowns — and if so, on what concrete point that investigation falls short? And if you were second-ranked: have you substantiated why the contract could only still be awarded to you, or are you merely contesting the award to the other?
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 →