Suspension request rejected — Theux municipality did not commit manifest error in rejecting Roberty's justification for abnormally high price on post 30 of La Reid – Le Thuron cycle path — subcontractor quote decomposing the price without identifying elements explaining the 46.51% deviation does not constitute sufficient justification
The Council of State rejected Roberty's urgent suspension request against Theux municipality's decision to exclude its bid for substantial irregularity in the cycle path works contract, ruling that the authority did not commit manifest error in finding that the subcontractor's quote decomposing the price of post 30 without identifying elements explaining the significant 46.51% deviation from the average did not constitute concrete, detailed and argued justification, and that neither execution capacity nor bid ranking were relevant in price verification.
What happened?
Theux municipality tendered cycle path works by open procedure on price alone. Ten bids were received. Roberty was invited to justify prices for posts 30, 75 and 180. For post 30, Roberty referred to its subcontractor's price plus its own overhead and margin, attaching the subcontractor's price breakdown. After a first award decision was withdrawn following a suspension request, a new decision again excluded Roberty (now only for post 30, post 75 justification having been accepted) and awarded to Trageco. The Council rejected all three grounds of the single plea: (1) the authority did not impose justification types — the mention of execution difficulties was merely illustrative; (2) the subcontractor's quote decomposed the price but did not identify what explained the 46.51% deviation; for abnormally high prices the goal is preventing speculation with public funds, making execution capacity and bid ranking irrelevant; (3) the article 28 observation on non-uniform overhead distribution did not participate in assessing abnormality of post 30's price. Request rejected.
Why does this matter?
Simply providing a subcontractor's price breakdown does not constitute sufficient justification if it doesn't identify concrete elements explaining a significant price deviation. Price verification serves to protect both the authority (execution risk for low prices) and public funds (speculation risk for high prices). Bid ranking is irrelevant to post-by-post price verification.
The lesson
Tenderers: when justifying a significantly above-average price, explicitly identify what explains the deviation — a subcontractor quote alone is insufficient. Don't rely on execution capacity or ranking arguments. Authorities: don't restrict justification types, but you may reject justifications that fail to explain the price deviation.
Ask yourself
Does your price justification concretely identify what explains the deviation from the average? A decomposed quote is not enough — have you explained why each component leads to the deviation?
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 →