Suspension request rejected in extreme urgency: five determinative grounds each independently justify exclusion for abnormal prices and substantial irregularity — construction of Éco-Centre IFAPME/FOREM in Namur Belgrade
BEMAT-DHERTE's suspension request against the award of lot 1 (structural works and finishes) of the Éco-Centre IFAPME/FOREM construction in Namur Belgrade to the joint venture Artes TWT – Artes Roegiers is rejected — the first plea is inoperative for failing to challenge all five determinative grounds, each independently sufficient, justifying exclusion for abnormal prices and substantial irregularity, and the second plea alleging unequal treatment is not serious.
What happened?
IFAPME launched an open procedure for the construction of an Éco-Centre IFAPME/FOREM in Namur Belgrade, divided into five lots. Lot 1 covered structural works and finishes. Eight tenderers submitted offers. BEMAT-DHERTE bid 23.04 million euros excl. VAT. The contract was awarded to Artes TWT – Artes Roegiers for 24.38 million euros. BEMAT-DHERTE's offer was excluded based on five determinative grounds, each independently sufficient. For the 'pilot company costs' post: abnormal price for a non-negligible item, also constituting substantial irregularity. For the subtotal of timber superstructure posts: multiple flagrant anomalies indicating ignorance of timber frame construction or price speculation, also substantial irregularity. For the 'prefabricated timber frame walls' post: price not entirely abnormal but insufficiently justified, with gaps identical to the timber structure, constituting substantial irregularity. The Council of State found the first plea inoperative: the applicants failed to challenge all five grounds — for post 24.21.3a they only argued the authority 'cannot demonstrate abnormality' without challenging the substantial irregularity that is precisely the exclusion ground. The second plea (unequal treatment because the intervener offered a lower unit price for a specific post) was not serious: it was the entire subtotal that was abnormal, and the intervener provided admissible justifications.
Why does this matter?
This ruling demonstrates that when an exclusion decision rests on multiple determinative grounds each independently sufficient, the applicant must challenge each one for the plea to be operative. It also distinguishes between abnormal price (article 36 AR 2017) and substantial irregularity (article 76 AR 2017): a price that is not entirely abnormal may still constitute substantial irregularity due to insufficient justifications.
The lesson
As tenderer: challenge every determinative ground of the exclusion decision separately. An unchallenged ground that suffices on its own renders your plea inoperative. Provide concrete, quantified and complete price justifications, especially for complex items. As contracting authority: structure your exclusion decision with clearly identified determinative grounds and distinguish between abnormal price and substantial irregularity.
Ask yourself
As tenderer, did I challenge each determinative ground of the exclusion decision? Are my price justifications concrete and quantified? As contracting authority, did I motivate each determinative ground separately?
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 →