La Fourche roundabout in Marche-en-Famenne: a price flagged as ‘divergent’ by the price bureau is not yet an abnormal price — Socogetra and TRBA fail against SOFICO
The Council of State refuses to suspend, under the extreme urgency procedure, SOFICO’s award of the road works at the La Fourche roundabout on the N4 in Marche-en-Famenne to Ecodream and Entreprises Hydrogaz: the fact that the price bureau flagged five items as ‘divergent’ did not oblige the contracting authority to launch the abnormal-price procedure of Article 36 of the Royal Decree on Award, as long as the award decision itself explained concretely why those prices were normal — which it did, notably because most items were negligible.
What happened?
SOFICO, the Walloon company that finances additional infrastructure investments, launched an open procedure with EU-wide publication on 17 February 2026 for a works contract: ‘N4 – Marche-en-Famenne: construction of the La Fourche roundabout, the service road and the Pirire slip road’ (reference SOF-MI-O8.08.02-26-260). Seven tenderers submitted bids, including Socogetra SA and TRBA SA jointly, and the temporary association Dubois Dawance Travaux – Entreprises Hydrogaz. Because Ecodream SA had absorbed Dubois Dawance Travaux SA (published in the Belgian Official Gazette on 10 April 2026, effective 1 October 2025), SOFICO accepted Ecodream as the tenderer in its place. On 13 July 2026 SOFICO awarded the contract to Ecodream and Entreprises Hydrogaz. For the price verification it had consulted the price bureau, which flagged five items as ‘divergent’: items 69 and 79 (removal of reinforced concrete and natural stone waste), 101 (earthworks for pipe laying), 116 (type 2 sub-base) and 126 (construction of an anchor abutment). The Walloon administration’s services (SPW Mobility and Infrastructure, Luxembourg roads directorate), which provide technical support to SOFICO, analysed those items and explained the low prices notably by the winning bidder’s own approved sorting centre and by the fact that most items were negligible (around 1% of the bid price). Item 126 did carry weight (almost 2% of the bid price), but was priced above average and accepted as the price for ‘uncommon work’, with a precisely calculated quantity leaving no room for speculation. The total price deviated less than 15% from the average. Socogetra and TRBA, informed by letter of 4 August 2026, applied for suspension under the extreme urgency procedure on 20 August 2026. Their plea: SOFICO had identified divergent prices and therefore had to question the winning bidder under Article 36, and its reasons were manifestly unreasonable. The Council of State, 6th chamber sitting in summary proceedings (acting presiding judge Florence Piret, with the concurring opinion of auditor Philippe Nicodème), disagreed. Price verification has two stages: first the mandatory check under Article 35, in which the contracting authority enjoys broad discretion, and only where prices appear abnormal the justification procedure of Article 36. A ‘divergent’ price according to the price bureau is a statistical indicator within the first stage, not a legal finding of apparent abnormality. The award decision also expressly referred to Articles 33 to 35, not Article 36, and the price bureau itself had concluded that the bid could be accepted ‘without a request for price justification’. The negligible nature of items 69, 79, 101 and 116 was borne out by confidential document B3bis; the authority did not have to explain its method further. The complaint about item 126 rested on the mistaken reading that this price was abnormally low, and was moreover inadmissible as obscuri libelli. After accessing the administrative file, the applicants raised a new plea in an ‘extended application’. That document is not provided for in the procedure and was taken into account for information only, but the new plea itself was admissible because it relied on documents only disclosed later, had been announced in advance and could be fully debated at the hearing. On the merits it failed: documents B3bis (20 March 2026), B4 (price bureau opinion, 2 April 2026), B3 (comparative price table of the seven bids, 27 April 2026) and the bid evaluation report of 28 April 2026 show a concrete price verification, and the decision rested on the SPW services’ own reasoning rather than a reference to the price bureau’s opinion. Complaints raised for the first time at the hearing without prior written notice were dismissed. The application was rejected. Socogetra and TRBA bear the 400 euro court fees, the 26 euro contribution and a procedural indemnity of 770 euros for SOFICO; the intervening parties pay their 300 euro intervention fee.
Why does this matter?
Tenderers challenging an award like to target the price verification: if the price bureau flags a competitor’s items as ‘divergent’, the step to ‘the authority should have requested justification’ seems small. This judgment draws a sharp line. The distinction between the two stages of price verification is decisive: a statistical deviation merely signals that an item deserves closer scrutiny in the first stage (Article 35); only if the authority itself, after that check, suspects abnormality must it launch the Article 36 justification procedure — and only then does the obligation to question the tenderer on compliance with environmental, social and labour law apply. Wording such as ‘rather low’, ‘well below the estimated price’ or ‘deviates significantly’ in the award decision does not prove such a suspicion, as long as the decision explains item by item why the price is nonetheless normal. The judgment also confirms that the negligible nature of items (here around 1% of the bid price) is in itself a valid reason not to request justification, and that the authority need not set out the calculation in the decision if the file supports it. The Council expressly distinguishes judgment no. 258.616, where the reasoning on the (non-)negligible nature of an item fell short. Finally, a procedural lesson that is often underestimated: a new plea after accessing the file is possible even in extreme urgency, provided it is announced in writing in good time; complaints improvised at the hearing are dismissed.
The lesson
For tenderers: a ‘divergent’ price in the price bureau’s opinion is not a trump card in itself. If you want to attack an award on price verification, show that the authority itself had (or reasonably should have had) a suspicion of abnormality and that its item-by-item explanations are factually wrong or manifestly unreasonable. Read the reasoning carefully: attacking a high price as if it were abnormally low loses the complaint immediately. If you only gain access to the file after filing, announce any new plea in writing to the other parties and the auditor before the hearing. For contracting authorities: this judgment shows what a price verification must look like to survive summary proceedings. Let the price bureau flag items, but analyse each flagged item yourself — the nature of the work, how it will be performed, its weight in the bid price and in the estimate; also review the items the price bureau did not examine; and include that analysis as your own reasoning in the award decision. Refer to Articles 33 to 35 if you have no suspicion of abnormality, and document the negligible nature of items in the file.
Ask yourself
Do you know that a price flagged as ‘divergent’ by the price bureau does not by itself require the authority to request justification under Article 36 of the Royal Decree on Award? Have you checked whether the award decision explains, item by item, why each flagged price is normal, and whether that explanation is factually correct? Have you verified whether the contested items are negligible in the bid price and in the estimate, and how the file supports this? Are you reading the reasoning correctly: is the price below or above the average? If you want to raise a new plea after accessing the administrative file: do you announce it in writing in good time so it can be fully debated at the hearing? As a contracting authority: does your award decision contain your own concrete price analysis, or does it merely refer to the price bureau’s opinion?
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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 →