Free green waste without proof: Eurogreen loses two park-maintenance lots because a price of zero euros warrants extra vigilance
The Council of State rejected Eurogreen’s extreme-urgency application against Brussels Environment’s award of the maintenance of the Woluwe Park and the railway promenade: a bidder who justifies suspected abnormal prices with a zero-euro cost for green-waste processing but fails to enclose the announced proof of that free arrangement delivers an incomplete justification, and the authority is under no obligation to knock a second time.
What happened?
In April 2022 Brussels Environment tendered the maintenance of green spaces in its eastern zone, divided into seven lots including lot 3 (Woluwe Park) and lot 6 (railway promenade), with price as the sole award criterion. Five bidders tendered. Eurogreen was lowest for both lots: €297,090.23 for lot 3 (15.37 % below the €351,043.53 average) and €162,567.81 for lot 6 (15.02 % below average) — each time just past the 15 % threshold that triggers a mandatory price inquiry. On 3 June 2022 the authority requested justification of the overall price and three suspect items per lot; Eurogreen replied on 15 June with files of 57 and 51 pages. The overall price and the dolomite item for lot 3 were accepted, but for mowing with collection, leaf and litter collection (lot 3) and hedge trimming (lot 6) everything turned on one element: Eurogreen priced green-waste processing at zero euros because a biomethanisation centre (Cinergie in Fleurus, 6 km from its premises) would take it for free — yet the announced supporting documents were missing from the file. The analysis report calculated that, at the Bruxelles Propreté rate of €55/tonne, the items would come out 25 %, 15 % and 11 % higher, and declared the tender substantially irregular for both lots; for lot 6 a justification based on a wrong presumed quantity (29,652 m² from lot 3 instead of 12,469 m²) was added. On 16 September 2022 the minister awarded lot 3 to Krinkels and lot 6 to Iris Greencare. Before the Council of State, Eurogreen argued that its price was not abnormal, that the authority should have questioned it again under article 36 § 2 or simply phoned Cinergie, and that identical zero-euro justifications had been accepted in 2018 and for the Cinquantenaire contract in 2020. The Council disagreed. A zero-euro price must in itself raise a red flag, and a bidder who justifies such a price without the promised documents and without the conditions guaranteeing free processing for the whole contract term delivers an incomplete and imprecise justification. The reference to €55/tonne was — as the conditional wording showed — not a prohibited ‘correction’ of the tender but an illustration of why the zero price could not be accepted. Re-questioning is a faculty, not a duty: nothing shows that every normally careful authority would have asked again. The alleged change of attitude failed because Eurogreen did not prove that the earlier justifications had been accepted in identical circumstances, supporting documents included. The application for suspension was rejected, in line with the auditor’s opinion; costs were reserved.
Why does this matter?
The judgment sets the bar for price justifications under article 36 of the Royal Decree of 18 April 2017 on three points that concern every bidder. One: the burden of proof lies entirely with the bidder, to which the Council attaches a duty of care — the reply must be ‘adequate, complete and sufficiently precise’, within the deadline. A 57-page file is not enough if precisely the document that must carry the core of the justification is missing. Two: a unit price of zero euros is not a price like any other. The Council states expressly that such a price must alert the authority, so its justification is scrutinised more strictly: whoever invokes free services must substantiate not only their existence but their durability over the whole term. Three: the re-questioning of article 36 § 2, final subparagraph (‘if necessary’) is a discretionary power, not a safety net for careless answers. A bidder who squanders the first opportunity cannot demand a second round or expect the authority to call the supplier itself. The judgment also shows how little reliance on earlier awards achieves: a ‘change of attitude’ requires proof that circumstances were identical, down to the documents submitted at the time. For authorities, the case usefully confirms that a comparative calculation using a market rate — carefully worded — is not a prohibited modification of the tender but a legitimate test of the justification offered.
The lesson
For bidders: treat every price justification as an exam you may sit only once. Do not announce documents you fail to enclose — the missing Cinergie certificate cost Eurogreen two lots for which it was lowest bidder. If you price an item at zero euros, put in writing who provides the service free, on what conditions and for the full term, and check your presumed quantities per lot before sending. Do not count on a second round of questions: it is optional. For authorities: request justification once the article 36 thresholds are crossed, assess the documents actually submitted, and record why an unsubstantiated zero price fails to convince — a comparison with a real market rate in conditional wording may help, as long as you do not recalculate the tender itself.
Ask yourself
Does your price justification contain every document it announces, and does it cover not only the existence but the durability of exceptionally favourable conditions over the whole term? Do you realise that a zero-euro item obliges the authority to extra vigilance — and you to extra proof? Do you know the authority is not required to question you again if your first answer is incomplete? And if you invoke earlier contracts where the same justification was accepted: can you prove you submitted the necessary documents then?
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 →