Rejection of suspension application for framework agreement for driftwood clearance from waterways — price investigation of total price and acceptance of non-quantified justification within margin of discretion
The Council of State rejects the urgent suspension application by NV Krinkels against the award of a framework agreement for clearing driftwood and debris from waterways of the Flemish Waterway to NV Stadsbader, finding all three pleas unserious: Stadsbader's offer complies with the specifications (the 'sloop' corresponds to the 'tugboat with pontoon'), and the price investigation in which non-quantified but plausible elements were considered in assessing the total price falls within the contracting authority's margin of discretion.
What happened?
The Flemish Waterway tendered through an open procedure a framework agreement for clearing driftwood and debris from waterways in the Central Region (Brussels-Scheldt sea canal, canal to Charleroi, Leuven-Dijle canal, Nete canal and Upper Senne), divided into two lots per district. Price was the sole award criterion. The specifications required water clearance using 'a self-propelled pontoon with minimum 5-tonne capacity or tugboat with pontoon with minimum 5-tonne capacity'. Six tenderers submitted for lot 1, seven for lot 2. NV Stadsbader's total price was more than 15% below the trimmed average for both lots, triggering a mandatory price investigation. Stadsbader provided a justification relying on non-quantified elements: experience, a depot near the site (Puurs, close to Renewi disposal facility), and coordination by a central logistics service. The authority acknowledged in the award report that these elements were insufficiently concretised to remove the presumption of abnormality on their own, but found they could 'undeniably have a favourable impact on the general price level'. After examining unit prices for key items (found market-conform) and receiving positive advice from ATO (General Technical Support Division) confirming the estimates as a 'valid benchmark', the authority concluded the total price was not abnormal. The contract was awarded to Stadsbader for both lots. NV Krinkels filed three pleas. In pleas one and two, Krinkels argued Stadsbader's offer deviated from the specifications by offering a 'sloop' instead of the required 'pontoon or tugboat with pontoon'. The Council examined Stadsbader's confidential offer and found the 'sloop' corresponded to the 'tugboat' in the specifications, connected to a pontoon. Krinkels was misreading the award report. The pleas lacked factual basis. In plea three, Krinkels challenged the four grounds for accepting the total price justification. The Council found: (1) non-quantified elements may support a price justification, especially for total price; (2) the unit price finding was linked to the already-rejected sloop premise; (3) the authority may consider the representativeness of examined items for explaining the total price difference; (4) the estimate is a valid benchmark, especially when confirmed by ATO. All pleas were rejected.
Why does this matter?
This ruling clarifies the contracting authority's margin of discretion in the price investigation under Article 36 of the Royal Decree on Placement 2017. Non-quantified elements (advantageous location, own depot, logistical organisation) may be considered in assessing a total price justification, even if insufficient on their own. The authority may consider the representativeness of examined unit prices for explaining the total price difference. The estimate is a valid benchmark, particularly when confirmed by external advice. The Council may not substitute its own assessment for the authority's.
The lesson
In a total price investigation, the contracting authority may consider a combination of elements: non-quantified but plausible factors (own depot, logistics organisation), unit price examination results, the representativeness of those items for the total price difference, and the ratio to the estimate. No single element need remove the presumption of abnormality on its own — it is the combination that counts. Document your reasoning transparently. As a tenderer challenging a price investigation: provide concrete, specific arguments showing the authority exceeded its margin of discretion, not merely general criticism.
Ask yourself
As contracting authority: did I assess all relevant elements of the price investigation in combination — total price justification, examined unit prices, their representativeness, and the ratio to the estimate? Did I document my reasoning transparently? As a tenderer seeking to challenge the price investigation: do I have concrete arguments showing the authority exceeded its margin of discretion?
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 →