The Papignies weir: a rejection over three apparently abnormal unit prices survives the extreme-urgency suspension
Ghent Dredging and Algemene Aannemingen Soetaert saw their second-lowest tender of 3,931,386.68 euros for the renovation of the Papignies weir declared irregular because the Walloon public-works department did not accept their price justification for three earthworks and concrete items (40, 86 and 87), and the Council of State refused to suspend under extreme urgency because the contracting authority had not exercised its broad discretion over apparently abnormal prices in a manifestly unreasonable way and had adequately motivated its refusal.
What happened?
The Service Public de Wallonie, a department of the Walloon Region, launched an open tender for the renovation of the Papignies weir: replacing two very old beam weirs with a new structure of two symmetrical 8-metre openings fitted with flap gates, in newly excavated connecting channels. The contract (special specifications no. 02.04.01-13D06, applying the Qualiroutes standard specifications) was published in the Bulletin of Awards on 26 September 2013 and was governed by the Royal Decree of 15 July 2011 as it stood before its amendment by the so-called repair decree of 7 February 2014. Ghent Dredging and Algemene Aannemingen Soetaert submitted a timely tender of 3,931,386.68 euros (excl. VAT), i.e. 4,756,977.89 euros (incl. VAT); it was the second-lowest. By letter of 14 February 2014 the authority requested a price justification for a series of unit prices, including items 40, 86 and 87. The bidders provided it on 26 February 2014: for item 40 (backfilling with soil from the excavations west of the new channel) they explained that compaction would be achieved by the rolling of the deployed machines — an excavator and a bulldozer — without a separate roller. By registered letter of 18 September 2014 the authority declared the tender irregular: the price justification for items 40, 86 and 87 was not accepted, whereas that for the other queried items was. The authority essentially reproached the bidders for not using a roller and for an allegedly ‘moderate or unfavourable’ output. The bidders sought suspension under extreme urgency. The Council of State recalled that article 21 of the Royal Decree of 15 July 2011 gives the authority broad discretion when examining apparently abnormally low prices, and that the Council cannot substitute its own assessment but only checks the accuracy, reality and relevance of the reasons and censures a manifestly unreasonable assessment. On formal motivation, the Council held that the extract of the evaluation report sent to the bidders expressly referred to heading ‘E.3.3. General backfill’ of the specifications and to the Qualiroutes rules on backfilling and compaction in thirty-centimetre layers; the bidders could therefore understand why their tender was found irregular. On the alleged manifest error, the Council found that the specifications imposed no particular execution method, but that the authority had rejected the tender not for the absence of an imposed method but because the proposed method did not appear to meet the required quality level for the backfill. None of the complaints made out, prima facie, a manifest error of assessment, so the single plea was not serious. The Council rejected the suspension, ordered the bidders to bear 400 euros in costs (200 each) and awarded the Walloon Region a procedural indemnity of 700 euros.
Why does this matter?
The judgment sharply illustrates the line between a bidder entitled to defend its price and an authority assessing a tender’s regularity. An apparently abnormally low unit price is not an automatic disqualification, but a bidder who justifies such a price must convince the authority that the contract can be performed at that rate in conformity with the contract documents. The authority enjoys broad discretion here, and the Council of State reviews it only marginally: it checks whether the reasons are accurate, real and relevant and whether the assessment is not manifestly unreasonable. Two lessons stand out. First, the freedom to choose an execution method — a bidder may decide how to achieve a result when the specifications impose no method — does not mean any method will do: the authority may verify whether the proposed method meets the imposed quality and compaction level. Second, a rejection based on price justification must be adequately motivated, but a reference to the precise heading of the specifications and the standard specifications suffices; the bidder then cannot successfully rely on a defect of motivation. For procurement practice, the judgment confirms that the price review is a real filter, but one that must itself be operated carefully and with reasons.
The lesson
If, as a bidder, you justify an apparently abnormally low unit price, do not stop at an arithmetic breakdown: show concretely that your method meets the quality and compaction level imposed by the specifications and the standard specifications (here Qualiroutes), and tie your justification to the exact headings. The freedom to choose your execution method does not relieve you of the duty to guarantee the imposed result. As an authority, the lesson is that you may reject a tender over an unaccepted price justification, but you must motivate your refusal precisely with reference to the breached provision; a mere label of ‘moderate or unfavourable output’ does not suffice, a reference to the concrete heading does. And for anyone considering suspension: against a broad, reasoned discretion, a manifest error of assessment is hard to establish in summary proceedings.
Ask yourself
Have you tied your price justification to the precise headings of the specifications and to the requirements of the standard specifications, rather than merely breaking down your unit price? Can you show that your chosen execution method actually meets the imposed quality and compaction level, even though the specifications impose no method? As an authority: does your rejection decision refer to the concrete, breached provision, or does it stop at a vague label such as ‘unfavourable output’? Do you realise that the Council of State reviews the price examination only marginally and does not replace your own assessment with its own?
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 →