‘The yields of recent years’: why the Flemish Region may not discard a tender on figures the bidder never saw
The Flemish Region declared K.’s tender for green and cleanliness maintenance on the Flemish Brabant motorways irregular because its yields for three items were unrealistically high ‘given the execution conditions and the yields recorded in recent years’ — but the Council of State suspended the award under extreme urgency, both because that formula is too vague to serve as reasoning and because article 36, § 3, third paragraph of the Belgian procurement placement decree requires such external figures to be put to the bidder first.
What happened?
The Flemish Region launched, by open procedure under article 36 of the Act of 17 June 2016, a services contract for ‘green and cleanliness maintenance on the motorways in the province of Flemish Brabant: A-roads West (D211, Halle – D212, Vilvoorde)’, published nationally and at European level. Four bidders tendered, including K. Its total amount was more than 15 % below the statutory average, triggering the presumption of abnormality under article 36, § 4 of the royal decree of 18 April 2017. K. submitted a detailed price justification in time, and it was accepted for the total price: the selling prices for staff and equipment and the landfill and processing costs — together more than 90 % of the tender amount — proved to be at current market levels, the labour costs just met the statutory minima of joint committee 145.4, and the surcharge for overheads, profit and risk was in line with the market. At the level of unit prices matters went differently. The authority examined every item accounting for more than 1 % (together roughly 70 % of the amount), with a deviation threshold of 25 to 30 % for low and 50 % for high prices, and requested justification for items 52, 55, 79 and 191. Item 191 was accepted. The other three were not: the yield of 40,200 m²/day for mowing verges (item 52), of 15,650 m/day for the surcharge on crash-barrier mowing (item 55) and of 20,175 m/day for removing overhanging branches between 1.25 and 5 metres in height (item 79) were, according to the award report, ‘estimated unrealistically high given the execution conditions and the yields recorded in recent years’. On 29 June 2026 the Region awarded the contract to A.; the reasoned award decision was notified by registered letter on 15 July 2026. K. lodged an application for suspension under extreme urgency on 30 July 2026; the case was heard on 20 August 2026. The Council of State dealt with the first plea (failure to state reasons) and the second (breach of the transparency principle) together. Prima facie it found that the authority relied, without distinguishing between the three items, mainly on one and the same vague formula, and that this did not enable K. to assess in an informed way whether litigation made sense. That the underlying figures could be found in the administrative file did not suffice: a party invoking the duty to state formal reasons must be able to read those reasons in the decision itself. The explanation in the note of observations — in which the Region referred to a contract K. had performed in 2021 and to the yield achieved by the incumbent provider the previous year, both considerably lower — also came too late: communicating reasons after the bidder has already gone to the Council of State does not cure the defect. On top of that came a second, weightier objection. Article 36, § 3, third paragraph of the decree of 18 April 2017 allows the authority to use, when assessing a price justification, information that does not come from the bidder itself, but obliges it to put that material to the bidder first so that he can respond — an obligation which, according to the Report to the King, flows from article 69.3 of directive 2014/24/EU and safeguards the rights of the defence. The Council expressly located that step after receipt of the price justification, not before it, as the Region argued. Here it appeared prima facie that the past yields and the execution conditions had never been put to K., while they did underpin the finding of irregularity and were therefore not superfluous. The margin of appreciation the authority enjoys under article 36, § 3 gave it no licence to bypass that obligation. That K. knew its own 2021 yields made no difference, and the reliance on the confidentiality duty of article 13, § 2 of the Act of 17 June 2016 failed as well: factual findings about yields achieved in performing a contract are prima facie not a manufacturing or trade secret and not a confidential aspect of a competitor’s tender. To the argument that the Track & Trace printouts submitted by K. still did not rebut the abnormality, the Council replied that the authority must first put the data forward itself and assess the response; it cannot pre-empt that. Because the Region requested no balancing of interests, the Council ordered suspension under extreme urgency of the award decision of 29 June 2026.
Why does this matter?
This judgment sharpens two things that are often conflated in the practice of price scrutiny. The first is that accepting or rejecting a price justification is an assessment the authority may make itself — the Council of State does not substitute itself for it — but that this freedom coincides entirely with the duty to make the assessment visible. A reference to ‘the execution conditions and the yields recorded in recent years’ is not reasoning but a conclusion: it does not say which conditions, which years, which figures. That the data lie elsewhere in the administrative file, and that the note of observations eventually names them, cures nothing: the duty to state formal reasons exists precisely so that the bidder knows where he stands before he litigates. The second, and the most usable, is the reading of article 36, § 3, third paragraph. That provision is sometimes read as relevant only when the request for justification goes out. The Council places it expressly in the phase that follows: if, in assessing the answer, the authority brings in its own knowledge or external data — the bidder’s historical yields, the incumbent’s performance, internal measurements — those must be on the table before the decision is taken. Otherwise the rejection of the tender is prima facie unlawful, however defensible the underlying figures may be. That the authority cannot hide behind confidentiality completes the picture: figures on yields actually achieved in performing a contract are no trade secret, and there is no reason to shield them from contradiction. For anyone working in sectors where yields drive the price — green maintenance, road works, cleaning, transport — that is the difference between price scrutiny that holds up and price scrutiny that trips over the suspension threshold.
The lesson
If you are a contracting authority and you reject a price justification, write into the award decision itself which data you used: which yields, from which contract, from which year, and why those make the stated figure implausible. Item by item, because one formula for three different items does not cover the assessment. If that data does not come from the bidder — from your own measurements, from an earlier contract of that same bidder, from the incumbent’s performance — put it to him first and let him respond, after receiving his justification and before your decision. Confidentiality is no way out: factual execution yields are not a trade secret. And do not count on your note of observations to make good: reasons that surface only in the proceedings come too late. If you are a bidder and your tender is set aside for abnormally low unit prices, read carefully what that conclusion rests on. If all you find is a general reference to experience or to figures from the past that you were never shown, you have two pleas at once: a failure to state reasons and a breach of article 36, § 3, third paragraph. Knowing your own older yields does not deprive you of your right to be heard — and you do not lose that right by not having made a comparison with earlier years in your own justification.
Ask yourself
Can a rejected bidder read in your award decision which concrete yields, from which contract and which year, you set against his figures — or does it merely refer to ‘the execution conditions and the yields of recent years’? Do you give reasons for each contested item separately, or does one formula cover everything? Did you put the data that does not come from the bidder to him and assess his response before deciding, as article 36, § 3, third paragraph of the placement decree requires? Are you invoking confidentiality for figures that are in reality plain factual findings made during performance? And as a bidder: have you checked whether the reasons were already in the decision itself, or only surfaced in the note of observations after you had gone to the Council of State?
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 →