‘Moreover’ is not a legal basis: SOFICO adds up seven abnormal items and sees the re-award of the Marcinelle motorway-maintenance contract suspended for the second time
After the Council of State had already suspended its first award on 12 April 2022, SOFICO re-awarded the maintenance contract for the Marcinelle motorway district to Krinkels on 30 September 2022 (3,177,961.58 euros) and rejected Sogeplant’s cheaper bid (2,788,461.79 euros) because seven items with abnormal prices together made up 5.5 % of the average bid amount and two of them individually exceeded 1 %; the Council suspended that decision too, because the reasoning — which linked the two findings with ‘de plus’ and relied chiefly on the cumulative weight — did not rule out a misapplication of article 36, § 3, 1° of the Royal Decree of 18 April 2017, which ties rejection to the abnormal amount of a non-negligible item.
What happened?
On 5 May 2021 SOFICO published a notice for an open procedure for sweeping, clearing, cleaning and green-space maintenance in the Marcinelle motorway district (specifications CSCH no. 21-1036), with price as the sole award criterion and a commitment to order between 2,165,000 and 4,150,000 euros excluding VAT per year. By the deadline of 22 June 2021 five bids came in: A2, Artbel, the Eurogreen/Sotraplant consortium, Krinkels and Sogeplant. On 2 September 2021 SOFICO asked Sogeplant to justify the prices of a number of apparently abnormal items, which Sogeplant did on 16 September; three other bidders received similar requests. On 25 February 2022 SOFICO rejected the bids of A2, Sogeplant, Eurogreen/Sotraplant and Artbel for substantial irregularity and awarded the contract to Krinkels for 3,177,961.58 euros excluding VAT. Sogeplant sought suspension and obtained it by judgment of 12 April 2022. SOFICO withdrew its decision on 25 May 2022, asked bidders to extend their bids and on 30 September 2022 awarded to Krinkels again; the new decision was notified to Sogeplant by registered letter on 7 October. Sogeplant lodged an extreme-urgency application on 25 October 2022; A2 did the same in a separate case (no. 255.120). Krinkels intervened. SOFICO and Krinkels first disputed standing: under the case law (Suez R&R, no. 242.085; Jette Clean, no. 244.164) a rejected bidder has an interest only if it shows its rejection was unlawful, and Sogeplant was said to challenge only the award to Krinkels, not the rejection of its own bid. The Council disagreed: the single plea, in all four of its branches, criticised precisely the decision to reject Sogeplant’s price justification and to exclude its bid as substantially irregular; if that decision is unlawful, Sogeplant has been or risks being harmed, which suffices under articles 14 and 15 of the Act of 17 June 2013. Krinkels also alleged a lack of interest in the first branch: A2 had bid 2,496,954.82 euros, cheaper than Sogeplant (2,788,461.79 euros), so Sogeplant could never come first even if successful. That did not convince either: after a suspension and withdrawal SOFICO must re-examine the prices, taking account of the other branches of the plea and of A2’s action, and it is not established that A2’s bid would survive that review. On the merits, the first branch targeted how SOFICO had decided that the items with abnormal prices were ‘non-negligible’. The decision of 30 September 2022 reasoned as follows: to determine whether an item is negligible, one compares the average price of that item in the three comparable bids (A2, Sogeplant, Krinkels; average bid amount 2,821,126.06 euros) with the average total; item 81 represents 1.44 % and item 82 2.52 % of that average, so ‘given that the bill of quantities has 394 items’ those two have a non-negligible individual weight; ‘de plus’, the seven items with abnormal prices (45, 46, 58, 81, 82, 127 and 130) together represent 5.5 % of the average total, hence also a non-negligible overall weight; ‘since the seven items together have a non-negligible weight and moreover two of them individually’, the bid is substantially irregular under article 36, § 3, 1° of the Royal Decree of 18 April 2017. Sogeplant argued that SOFICO had used competitors’ averages never disclosed to it, that the contested items made up only 3.96 % of its own bid and between 0.2 % and 1.33 % each, that no threshold had been fixed in advance and that adding items together proves nothing about each item being non-negligible. SOFICO replied with the case law accepting a 1 % threshold and the cumulation of items (Desmet Machinebouw, no. 241.595; Pierre Frère et Fils, no. 243.658), with the observation that a 1 % item here represents at least 28,211.26 euros and the six or seven items together 155,161.93 euros, and with the argument that the disclosure duty of article 36, § 3, third paragraph concerns only the assessment of price normality, not of an item’s negligible character (judgment of 9 September 2022). The Council took a different angle from the parties. It read the reasoning literally: the words ‘de plus’ reveal that SOFICO based its decision on the combination of two factual findings, and the final sentence suggests that it was chiefly the overall weight of the seven items together that was decisive. Article 36, § 3, 1°, however, allows rejection only where ‘the amount of one or more non-negligible items’ is abnormal — the provision looks at the item, not at a sum. If the factual grounds are really what the formal reasoning prima facie suggests, they do not fall within that provision; its wording therefore does not exclude a misapplication of the regulatory basis, so the reasoning does not appear adequate. The first branch was serious; the other branches did not need examination. SOFICO identified no negative consequences of a suspension outweighing its advantages, and the Council saw none either. The Council admitted Krinkels’s intervention, suspended the award decision of 30 September 2022, ordered immediate execution, kept Sogeplant’s documents A to D and the administrative file’s A to F confidential and reserved costs. In A2’s parallel case (no. 255.120 of the same day) the Council adjourned sine die, because A2 already benefits from this suspension but its own judicial protection must be preserved should Sogeplant fail to bring or lose an annulment action.
Why does this matter?
The case law on non-negligible items is usually read as a free pass for contracting authorities: the Council accepts a 1 % threshold, accepts comparison with average prices, even accepts cumulation, and reviews only for manifest unreasonableness. This judgment draws the line. The Council does not say SOFICO’s method was unreasonable — it says its reasoning does not show that it applied the right rule. Article 36, § 3, 1° of the Royal Decree of 18 April 2017 ties rejection to the abnormal amount of a non-negligible item. An authority that writes that two items are each non-negligible and ‘moreover’ seven items together are too, and then concludes that the bid is ‘therefore’ irregular, leaves the reader — and the Council — unsure whether it would have rejected the bid on those two items alone. That ‘de plus’ is exactly what proved fatal. The lesson is about the architecture of a statement of reasons: every independent ground must stand on its own, and the decision must make clear which ground carries the rejection. The judgment also matters for standing. SOFICO and Krinkels tried twice to sideline Sogeplant: because it had supposedly not challenged its rejection separately, and because A2 was cheaper anyway. The Council answers pragmatically: a bidder that attacks the award with pleas criticising its own rejection is attacking that rejection; and in an extreme-urgency procedure it is not established that the cheaper competitor will survive the new price review, so the interest remains. Finally, the case shows how heavily a re-award after suspension weighs. SOFICO had withdrawn and redone its first decision after the judgment of 12 April 2022, only to see the second fall as well; the later judgments nos. 255.712, 257.136 and 258.579 show that it did not stop there. A price review built on sand does not become solid by being redone with the same reasoning.
The lesson
For contracting authorities: when rejecting a bid under article 36, § 3, 1°, state per item why it is non-negligible and why its price is abnormal, and say expressly that each of those items on its own justifies rejection. You may mention an overall percentage of the items added together as additional context, but never let it become the operative ground — the provision looks at items, not sums. Avoid connectors like ‘moreover’ between an independent and a cumulative ground without saying which is decisive. Fix your threshold (here 1 % of the average bid amount) and reference base in advance and state them in the decision. And when re-awarding after a suspension, thoroughly rewrite the price review instead of repeating the same reasoning in other words. For bidders: read a rejection decision like a lawyer. Check which provision it relies on and whether the facts the authority cites actually fall under it; the distinction between ‘a non-negligible item with an abnormal price’ and ‘abnormal items that weigh a lot together’ was the winning argument here. Do not be put off by the objection that you lack interest because a competitor was cheaper: as long as the price review must be redone, your chance remains. And make sure your pleas expressly attack the rejection of your own bid, even if the formal request targets the award.
Ask yourself
As an authority: can you point, for each rejected bid, to a single item that is both non-negligible and abnormally priced, and does your decision say so? Would your rejection still stand if the Council struck out the cumulative percentage? Did you fix your threshold and reference base before the price review? As a bidder: have you dissected the reasoning of your rejection to see whether the facts cited fall under the provision invoked? Does your application contain at least one plea attacking the rejection of your own bid, so that your standing is beyond doubt? Do you know that a cheaper competitor does not remove your interest as long as the authority must redo the price review? And have you checked whether the same award was suspended before — the reasoning of a re-award deserves extra critical reading.
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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 →