Water-link may dispose of ‘no abnormal prices’ in a single sentence — and weigh team leaders as an award criterion: three pleas against the water-mains contract all fail
GKW, ranked third for the second lot of Water-link’s framework agreement for works on the distribution network, attacked the award to CAS-VOS on a price review dealt with in one sentence, on assessment elements under the method statement that in its view had nothing to do with the subject matter of the contract, and on a weighting of the award criteria that shifted from 85/15 in the contract notice to 65/35 in the specifications — but the Council of State found none of the pleas serious and dismissed the action.
What happened?
Water-link, the Antwerp drinking-water utility, tendered a works contract in the utilities sectors for a ‘Framework agreement works distribution network’ — renewing and extending water mains — through a negotiated procedure with prior call for competition, divided into two lots. Selection turned on economic and financial standing and technical and professional ability; the award was to be made on price and on a second criterion, the ‘method statement for the execution of the works’. Twelve candidates came forward, all were selected and invited to bid: six bids for lot 1, nine for lot 2. After negotiations and final bids, on 28 May 2026 Water-link decided to award both lots to CAS-VOS. A first action under extreme urgency followed, after which Water-link withdrew that decision on 25 June 2026 — not because of the price review, but because of a possible reasoning problem in the qualitative selection. A fresh assessment and an examination report of 9 July 2026 led on 13 July 2026 to both lots again being awarded to CAS-VOS. GKW, ranked third for lot 2, sought suspension under extreme urgency on 30 July 2026; CAS-VOS intervened on 11 August; the hearing took place on 20 August 2026. In its first plea GKW complained that the award report dealt with the price review in a single sentence — ‘after examination it appears that no abnormal prices, either in terms of total prices or of unit prices, were submitted’ — whereas in its view the history of the file called for a fuller statement of reasons. The Council of State did not follow: the account of a price review may be concise so long as no particular problems have arisen, and the withdrawal of the first award concerned the selection reasoning, not the price review; the fact that GKW had voiced the same criticism earlier likewise creates no heightened duty to state reasons. Substantively, the assessment tables and the minutes of the negotiation meetings showed that the prices had indeed been examined and that explanations had been sought where needed. The six final total prices for lot 2 lay between roughly 14.97 and 19.80 million euros including VAT — a range from which a normally diligent contracting entity need not prima facie infer any apparently abnormal character. That one total price came out higher did not mean that abnormal unit prices had to be hiding somewhere among the many items; moreover that criticism concerned the last-ranked bidder, from which GKW could draw no advantage. And that explanations had been sought on the initial bids but hardly on the final ones did not suffice: the duty to examine a price arises not because it raised questions at an earlier stage, but because the price ultimately offered appears abnormal. The second plea — that Water-link had rewarded elements unrelated to the subject matter of the contract under the method statement, such as green energy contracts, sustainability reporting, an ISO 14001 certificate, social facilities, dust screens and low-noise machinery — first failed on interest: GKW aimed its criticism almost exclusively at CAS-VOS’s bid while leaving the second-ranked bid untouched, which scored 28/35 on the second criterion against 23.1/35 for GKW. A reassessment of CAS-VOS would leave that second place intact. In so far as the criticism touched all bids, the Council held that checking whether a method statement is realistic and workable within the contractual, technical and practical framework conditions does not elevate those conditions into award criteria: what is assessed is the quality and credibility of the proposed organisation of the work, not the conditions themselves. The third plea fell into three limbs. Using the organisation, qualifications and experience of staff as an award criterion is expressly permitted by article 81(2)(3)(b) of the Law of 17 June 2016, including for works; utility works require not merely enough labour but also coordination of teams and technically skilled staff, all the more so near existing utility infrastructure. There was no impermissible double assessment: selection probes the ability of the undertaking as a whole, the award criterion the quality of the staff actually deployed, in particular the team leaders — and the contractor-accreditation rules, which establish general suitability, answer a different question. Nor does a non-exhaustive list of assessment elements in the specifications turn each listed element into a free-standing sub-criterion: it gives insight into how the authority understands the criterion, and the margin of appreciation remains bounded by the scope of the published criterion and by equal treatment and transparency. Finally the weighting: the notice stated 85 points for price against 15 for quality, the specifications 65 against 35 — a clerical error, according to Water-link. Because the procedure ran in two stages and the specifications were sent to the selected candidates only after selection, all bidders had the same, ultimately applied ratio before drawing up their bids. GKW had itself applied to participate, had been selected, and had taken part in full knowledge of 65/35, without making concrete the specific disadvantage it suffered from the discrepancy. The Council did not refer the questions proposed for a preliminary ruling: that is manifestly incompatible with interim relief proceedings, as the Court of Justice held in its judgment of 24 May 1977 in Case C-107/76 and the Constitutional Court confirmed in judgment no. 156/2024 of 19 December 2024. No plea was serious; the action was dismissed and the intervening party bore the costs of its intervention, set at 150 euros.
Why does this matter?
This judgment and judgment no. 267,513, delivered the same day by the same vacation chamber, together draw a sharp line around when a concise statement of reasons on the price review suffices and when it does not. The rule is not that authorities must always set out in full how they checked every unit price; the rule is that brevity is allowed so long as no particular problems have arisen and the administrative file shows the work. Water-link got away with one sentence because the assessment tables and meeting minutes made the work visible and the price range of 14.97 to 19.80 million euros rang no alarm bell. There is a hard lesson in that for bidders: an award report that looks terse is not automatically a defective one, and attacking only the length of the reasoning without pointing in the file to where the review is missing is fighting the wrong enemy. Equally usable is what the Council says about the relationship between an earlier and a resumed procedure. That an award decision was challenged and withdrawn does not automatically heighten the duty to state reasons for the second decision: what matters is the reason for the withdrawal. Here it lay in the selection reasoning, not in the prices. And that an authority sought explanations on certain unit prices at an earlier stage does not oblige it to repeat the exercise after the BAFO — the test is whether the price ultimately offered appears abnormal. The third plea yields the most structural gain. The organisation, qualifications and experience of staff may serve as an award criterion, including for works, and that does not necessarily collide with the selection stage — provided the object differs: the ability of the undertaking belongs to selection, the quality of the team leaders actually deployed to the award. That line is thin and is regularly crossed; here it held. Finally the weighting. A notice stating 85/15 and specifications imposing 65/35 is an error that in other circumstances can distort competition. The Council saves it here with an argument that no authority should treat as a free pass: the procedure ran in two stages, everyone knew the correct weighting before writing a bid, and the applicant showed no disadvantage of its own. A potential candidate deterred by the announced 85/15 might well have the stronger case — but that party was not before the court.
The lesson
If you are a contracting authority, the message is not that ‘no abnormal prices found’ will do, but that you get away with it only if your file shows the work: assessment tables, meeting minutes, the questions you did ask. If you resume a procedure after a withdrawal, check why you withdrew — a selection-reasoning problem does not heighten your duty to reason on prices, a pricing problem obviously does. If you want to weigh the experience and qualifications of staff at the award stage, describe expressly the people who will perform the contract — the team leaders, their role, their deployment — and not the company’s track record; that belongs to selection. Finally, make sure the notice and the specifications state the same weighting; if you do find they differ, correct it visibly and in time, because the reasoning that saved Water-link here hangs entirely on the two-stage sequence. If you are a bidder, the main lesson concerns strategy. Do not aim your criticism exclusively at the winner when you rank third: as long as you leave the intervening bid untouched, you do not move up even if you win, and your plea loses its interest. Attack a price review on its substance, not its length: identify concretely which price appears abnormal and why, and ask for sight of the documents that should support the review. And do not count on preliminary references in interim relief proceedings — those belong to the proceedings on the merits.
Ask yourself
Does your administrative file — tables, meeting minutes, questions asked — show that you genuinely examined the prices, even if the award report is brief on the point? Do you know why an earlier award decision was withdrawn, and which part of your reasoning therefore carries more weight? Under a ‘staff’ award criterion, are you assessing the people who will perform the contract, or slipping back into the company track record you already weighed at selection? Do your notice and your specifications state the same weighting of the award criteria, and can you show that all bidders knew the applied ratio before drawing up their bids? And as a bidder: if you rank third, have you also challenged the bid ahead of you, and can you support your criticism of the price review with a concrete price rather than with the brevity of the reasoning?
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 →