Urgent suspension request by tm Envisan – Aertssen Infra against award of Blaasveldbroek soil remediation works granted — OVAM accepted price justification for apparently abnormally low total price of tm Deme Environmental – Aclagro with insufficiently concrete and distinguishing motives — high productivity and low overhead do not suffice without feasibility assessment
The Council of State suspended OVAM's decision to award the Blaasveldbroek soil remediation works in Willebroek to tm Deme Environmental – Aclagro, because OVAM had accepted the price justification for the apparently abnormally low total price (40.44% deviation from average) with merely general and abstract motives (experience, own equipment, own grounds, economies of scale, low overhead percentage) without concretely assessing technical and financial feasibility, while the same justification elements had been invoked by the applicant parties rendering the assessment lacking in distinguishing character.
What happened?
OVAM tendered complex soil remediation works combining asbestos removal, hydraulic engineering and nature restoration in the Blaasveldbroek nature reserve, partly EU-funded. Three bids were received with a major price spread: €1.85M, €3.31M and €4.18M. OVAM used objective thresholds (3% for negligible posts, 50% deviation from average) for identifying apparently abnormal prices and requested justification from the lowest bidder for 14 of 48 posts plus the total price. The total price deviated 40.44% from the average. OVAM accepted the justification based on experience, own equipment, available land, economies of scale and low overhead — but the applicant invoked the same elements and was accepted in quasi-identical wording. The Council found the price examination insufficiently thorough: no distinguishing character, 'inter alia' insufficient as motivation, erosion mat pricing concerns, and high productivity claims not verified against feasibility.
Why does this matter?
This ruling clarifies that accepting an apparently abnormally low total price justification requires concrete, distinguishing motives — not abstract elements any specialized contractor could invoke. Non-numerical justification elements are allowed but must demonstrate exceptional circumstances. The same elements accepted for multiple tenderers in identical wording lacks distinguishing character.
The lesson
As contracting authority: concretely assess whether price justification elements distinguish the chosen tenderer from competitors. Involve the cost estimate as reference. Verify technical and financial feasibility of proposed methods and low overhead. As challenging tenderer: demonstrate that the same justification elements were invoked and accepted in identical wording for your bid.
Ask yourself
Have you concretely demonstrated the distinguishing character of the chosen tenderer's justification elements? Did you involve the cost estimate? Did you verify the feasibility of proposed methods and low overhead percentage?
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 →