Aertssen Infra's suspension request against Heindonk dike works award to Herbosch-Kiere rejected — expired supplier quote does not make tenderer's commitment uncertain — for negative soil prices a credible supplier quote suffices as price justification — overhead on negative price components justified — differentiated overhead percentages not contrary to article 28
The Council of State rejected Aertssen Infra's urgent suspension request against De Vlaamse Waterweg's award of Tien Vierendelen dike works to Herbosch-Kiere, ruling that the expiration of a soil supplier's quote before the commitment period ended did not make the tenderer's commitment uncertain (internal business matter), that for negative soil prices a credible supplier quote can suffice as price justification, that applying overhead to negative price components is justified, and that article 28 does not prohibit differentiated overhead percentages by cost category.
What happened?
De Vlaamse Waterweg tendered dike works for the Tien Vierendelen controlled flooding area in Heindonk by open procedure on price alone. Eight bids were received. Three were more than 15% below average, with Herbosch-Kiere at -75.24% (€324,922) due to negative soil prices — an exclusive supplier partnership providing soil at negative market rates (tipping fees). The first plea (commitment uncertainty due to expired supplier quote) was rejected: the distinction between tenderer and supplier commitments means a supplier's expired quote is an internal matter. The second plea challenged the price justification: (1) a credible supplier quote specific to the volume can justify negative prices; the supplier had a comparable ongoing project and a full order book through 2024; (2) overhead on negative price components (tipping fees) is justified as receiving soil requires operational resources; (3) article 28 permits differentiated overhead percentages by cost type. Request rejected.
Why does this matter?
For contracts involving soil with negative market prices: a supplier's expired quote doesn't make a tenderer's commitment uncertain. A credible, volume-specific supplier quote can suffice as price justification for negative prices. Overhead may be applied to negative price components. Article 28 permits differentiated overhead percentages.
The lesson
Tenderers: challenging a competitor's negative prices requires more than arguing a supplier quote is insufficient — if it's credible and volume-specific, it can stand. Authorities: you can accept a supplier quote as price justification for negative prices but verify credibility. You need not explain in the award report why contract-compliant execution is possible.
Ask yourself
Is the competitor's supplier quote specific to the volume and credible (ongoing projects, full order book)? Are your own overhead percentages on negative price components market-conform?
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 →