Council of State suspends award of school window replacement contract in Brussels due to reference outside five-year period and inadequate price examination
The Council of State suspended on an emergency basis the award by the City of Brussels of a contract for the replacement of wooden window frames in the Queen Astrid school, because the selected tenderer had submitted a reference falling outside the five-year period required by the specifications and the general price examination was not supported by sound and careful reasoning.
What happened?
The City of Brussels tendered a public works contract through an open procedure for the replacement of wooden window frames (windows and doors) in the Queen Astrid school, estimated at €2,380,724 excluding VAT. Two tenders were submitted: J.D.W. at €1,495,520.89 and the Wycor-Fabribois combination at €2,406,050.50. The specifications required two references of similar works worth at least €750,000 each, executed within the past five years, with mention of the start and end date of the works. Price was the sole award criterion. The college of mayor and aldermen awarded the contract to J.D.W. on 5 October 2023. On 24 November 2023, the Brussels minister responsible for local authorities, acting as supervisory authority, suspended the award decision, finding insufficient selection reasoning, a six-year-old reference instead of five, inaccurate price verification, and violation of the transparency principle. The city maintained the award on 5 January 2024 with expanded reasoning, arguing that the five-year reference period should be calculated from the date of final acceptance (26 August 2019) rather than from the end date of the works (2017), and that price verification was based on comparison with UPA price lists and prices from their regular contractor. Wycor and Fabribois filed an emergency suspension request on 24 April 2024. The Council of State found the first ground serious: the specifications explicitly requested the start and end date of the works, not the date of final acceptance. A reference with end date 2017 fell outside the five-year period. By accepting this reference, the city acted contrary to its own specifications and the patere legem quam ipse fecisti principle. The third ground was also serious: the general price examination was not supported by sound reasoning. J.D.W.'s total price was 37% below the estimate and 38% below Wycor-Fabribois's price. The comparison with UPA price lists was unsuitable because these only contained prices for meranti wood, not for the afzelia wood required by the specifications. A technical report by an external partner prepared after the contested decisions constituted inadmissible post factum reasoning. The Council ordered the suspension of both award decisions.
Why does this matter?
This ruling illustrates two common pitfalls in public procurement. First, when specifications define the reference period by the start and end date of the works, the contracting authority may not unilaterally reinterpret this as the date of final acceptance. Doing so violates the patere legem quam ipse fecisti principle. Second, a summary price examination stating merely that prices appear correct is insufficient when the total price is more than 37% below the estimate. In such cases, the contracting authority must address the suspicion that such a price difference should reasonably raise, either through further examination or thorough substantive reasoning. A comparison with standard prices for a different wood type than required by the specifications is unsuitable, and a report prepared after the contested decision constitutes inadmissible post factum reasoning.
The lesson
Respect the reference period as defined by the specifications — if the specifications ask for the start and end date of the works, that is the benchmark, not the date of final acceptance. Support the price examination with relevant comparison data: a comparison with standard prices for a different wood type than required by the specifications is not convincing. A price difference of more than 37% from the estimate requires more than a summary finding that prices appear correct.
Ask yourself
As a contracting authority: have I assessed the reference period based on the criteria defined in my specifications, or have I applied my own interpretation that does not follow from the procurement documents? And for significant price differences: have I conducted a substantiated price examination with comparison data that is actually relevant to the specific contract?
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 →