The average of two bids as a yardstick: the Council of State suspends the Aalst glass-maintenance award because the city applied two standards
The city of Aalst measured the two remaining bids for the maintenance of glazing and joinery against their mutual average of 59,181.88 euros, accepted the winner’s terse reference to ‘optimised routes’ without a single supporting document on file, and at the same time rejected the outgoing contractor T.T.’s explanation for not being backed by figures — and it was precisely that difference in strictness, together with the disregard of the estimate, that led the Council of State to suspend the award under extreme urgency.
What happened?
Under an open procedure based on article 36 of the Law of 17 June 2016, the city of Aalst tendered a services contract for a ‘framework agreement for the maintenance of glazing and joinery of various buildings for a period of maximum 4 years’, published nationally and at European level. Three bids came in; one was declared substantially irregular and set aside, leaving two in practice: that of T.T., which had been performing the contract for eight years, and that of A. In the general price review the city compared each price with the arithmetic average of the bids — 59,181.88 euros excluding VAT, with a permitted deviation of 15 per cent, giving a range of 50,304.59 to 68,059.16 euros. A. bid 47,814.75 euros (19.21 per cent below the average), T.T. 70,549.00 euros (19.21 per cent above). The same mirroring appeared in the unit prices: for item 12 (De Werf cultural centre) 2,325 euros against 4,529 euros, for item 21 (Duizendpootjes) 2,962.50 euros against 2,135 euros, for item 35 (Utopia library) 2,325 euros against 6,000 euros. The city questioned both bidders and treated their answers unequally. A.’s explanation — efficient performance through optimised planning and route optimisation, and cost optimisation by making maximum use of its own aerial platform — was accepted each time with the formula that the price ‘does not appear abnormal’. T.T.’s explanation — eight years of virtually unchanged prices, investment in new machines, knowledge of the buildings concerned, a more expensive maintenance product (Textar) for the façade panels and an additional worker to guide the cable during gondola work — was rejected point by point as too general and not supported by figures. T.T. then had to file a formal price justification under article 36 of the Placement Royal Decree; its bid was subsequently declared irregular and set aside. On 10 July 2026 the city awarded the contract to A.; on 20 July 2026 it notified the reasoned award decision by registered electronic letter. On 4 August 2026 T.T. sought suspension under extreme urgency; the hearing took place on 27 August 2026. The Council of State first rejected the city’s objection that T.T. only had an interest in its second limb if both the total price and items 21 and 35 had wrongly been found abnormal, and then examined the price review prima facie. With only two bids before it, the average undermines its own representativeness: it is no obvious starting point to call one price or the other abnormal merely because it deviates from that so-called average. Moreover, the winner’s price was roughly 33 per cent below T.T.’s, while T.T.’s own price was already well below the estimate — and the administrative file did not show that the city had involved the estimate or any other benchmark in its review; the reasons it later advanced in its observations to set the estimate aside struck the Council as formulated after the fact. Of the claimed efficient performance, optimised planning and route optimisation, the file contained not a single document beyond the winner’s equally sparse explanation. Where T.T. was repeatedly reproached for a lack of verifiable and quantifiable data, A. was not held to the same reproach — which prima facie does not square with the duty to treat all bidders on an equal footing at every stage. Finally, the Council found that weighing the explanations solely against the average meant that T.T.’s arguments were read only through the lens of an excessive price, so that relevant elements — eight years of stable prices, the new machines, the knowledge of the buildings, and the contention that it was not its own price that was too high but the competitor’s that was below market conditions — were not seriously taken into account. The wide margin of appreciation and the limited formal duty to state reasons in a general price review changed nothing: they do not relieve the authority of a careful review whose findings are supported by the file. The single plea was serious to the extent indicated, and the Council ordered the suspension under extreme urgency of the decision of 10 July 2026.
Why does this matter?
The judgment cuts into a habit ingrained in many award reports: set the bidders’ prices against their mutual average, draw a band of 15 per cent, and call whatever falls outside it ‘apparently abnormal’. That autopilot does not hold when only two bids are on the table. With two prices the average lies by definition exactly between them, so every deviation is a mirror image — here twice 19.21 per cent, and in the unit prices twice 32.16 and twice 44.14 per cent. The instrument then measures not the normality of a price but only the distance between the two bidders. The Council adds a second correction that is at least as usable: the contracting authority’s estimate is not scenery. Where both bids fall below the estimate and the authority nonetheless brands the higher one abnormally high, the file must show why that estimate was set aside — and not only through observations filed during the proceedings. The third and sharpest point concerns symmetry. An authority may be strict about quantified substantiation, but then for everyone. A winner who invokes ‘optimised routes’ and gets away with it while the loser is penalised for not costing out man-hours or unit costs produces a file that fails the test of article 4 of the Law of 17 June 2016. Finally, the judgment recalls where the burden lies: the finding that there are no abnormal prices need not be set out in full in the award report, but it must find support somewhere in the administrative file. A file that is empty on that point makes judicial review impossible — and that alone suffices for a serious plea.
The lesson
If you use a calculation module that sets bids against the average, first look at how many bids actually remain. With two bidders that average is not an objective yardstick but a mirror, and you must draw on other reference points: your own estimate, historical prices from the previous contract, market data, the build-up of the items. If you set the estimate aside, give your reasons in the award report and not only in your defence note. Then apply the same bar to everyone: if you demand man-hours, deployment times and cost specifications from one bidder, do not accept from the other a single sentence about ‘efficient planning’ without any supporting document. And make sure the administrative file shows the work — the emails, the calculations, the method statement you actually examined — because what is not in it does not exist for the Council of State. If you are a bidder asked to justify a high price, do not give qualitative reasons alone but put figures to them: man-hours per item, material cost per m², output rates. Compare explicitly with the estimate and with the competitor’s price, and in your action ask for sight of what the authority accepted from that competitor — the difference in strictness is the plea that worked here, not the price explanation itself.
Ask yourself
How many bids genuinely remain after the regularity check, and with that number is your average still a meaningful yardstick? Have you involved the estimate, the prices of the previous contract or other market data alongside the average — and does that appear in the award report or only in your head? Can you show, item by item, that you weighed the winner’s explanation as critically as the loser’s? Does the administrative file contain a document substantiating the winner’s accepted price explanation, or only the sentence in which you accept it? And as a bidder: have you substantiated your higher price with figures rather than experience, and have you checked whether the authority asked the competitor for the same substantiation?
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 →