Second challenge against NMBS tilting poles rejected: distinction between negotiation and price justification, selective special price investigation permitted
The Council of State also rejects the application of another tenderer against the same NMBS award for tilting poles, clarifying that a price justification is not a negotiation, that the special price investigation may be applied selectively to the first-ranked tenderer, and that repeated inquiry is permitted.
What happened?
This ruling concerns the same NMBS framework agreement for multifunctional tilting poles as ruling 261.081, but was brought by NV P., a different unsuccessful tenderer. While NV D. (the second-ranked) challenged the award in ruling 261.081, NV P. here raises two separate grounds. The first ground alleged unequal treatment during the negotiation procedure. NV P. argued that, unlike the successful tenderer and the second-ranked (NV D.), it was not genuinely given the opportunity to negotiate. The NMBS's May 2024 letter was in reality not an invitation to negotiate but merely a question about apparently abnormal prices. NV P. contended that the special price investigation after the negotiation phase — where the successful tenderer was questioned multiple times — effectively constituted extra negotiation opportunities not offered to NV P. The Council rejected this. The NMBS letter was addressed to all four tenderers and expressly invited them to 'submit an adjusted offer that may serve as a final offer'. This is the essence of a negotiation phase. That tenderers were also alerted to apparently abnormal prices did not transform this into a price justification exercise. NV P., who was required to include its best price in the initial offer given the specification's reservation that the NMBS could award without negotiation, could not expect further negotiation on 'specific details and conditions'. Crucially, the Council ruled that the special price investigation after the negotiation phase fundamentally differs from negotiation: during price justification, the tenderer cannot change its prices but can only explain existing prices. There was no unequal treatment. The second ground, in two parts, concerned the price investigation itself. The first part argued that the NMBS should have conducted a special price investigation already at the initial offer stage, citing Article 44 §4 of the Royal Decree (legal presumption at 15% deviation) and specification clause 01.4.4. The Council ruled — consistent with ruling 261.081 — that Article 44 §4 does not apply to the simplified negotiated procedure. Moreover, the Council analyzed specification clause 01.4.4 in detail: the footnote reference to 'Article 43' of the Royal Decree concerns only the general price investigation, not the special one. The provision that only regular offers proceed to the next phase refers to irregularities other than apparently abnormal prices. The NMBS had not imposed on itself in the specifications an obligation to conduct a special price investigation on initial offers. As long as it had not done so, there was no substantial irregularity in the initial offer requiring annulment or regularization. The first part was not serious. The second part contested the acceptance of the price justification with largely the same arguments as in ruling 261.081: vague grounds, non-distinguishing elements, no numerical substantiation. The Council ruled identically: the confidential documents contained a detailed numerical analysis, the grounds were plausible and distinguishing, and unit prices for non-negligible items deviated no more than 10% from the estimate. NV P.'s argument that prices 25% below the average are by definition not market-conforming was rejected — this would render the special price investigation pointless. Finally, the Council held that the repeated inquiry of the successful tenderer was permitted under Article 44 §2, in fine, of the Royal Decree. The special price investigation need not be applied to all tenderers — the NMBS could limit itself to the first-ranked. The second part was not serious. The application was rejected.
Why does this matter?
This ruling, together with ruling 261.081, forms an instructive pair on price investigation in special sectors. It adds three additional lessons. First: the fundamental distinction between negotiation and price justification — during negotiation the tenderer may adjust its offer, during price justification it explains existing prices. These are separate phases; the price justification may not be equated with additional negotiation opportunities. Second: a specification clause prescribing a general price investigation on initial offers (with footnote reference to Article 43 of the Royal Decree) does not require a special price investigation. Third: the special price investigation need not be applied to all tenderers — selectively questioning only the first-ranked tenderer is permitted and does not constitute unequal treatment.
The lesson
As a contracting authority, make a sharp distinction between the negotiation phase (where tenderers may adjust their offers) and the special price investigation (where the tenderer must justify existing prices without being allowed to change them). The special price investigation may be conducted selectively on the first-ranked tenderer and need not be applied to all tenderers. Repeated inquiry when the first justification is insufficient is expressly permitted by Article 44 §2, in fine, of the Royal Decree. Draft your specification clauses on regularity and price investigation so they do not inadvertently imply an obligation for a special price investigation on initial offers.
Ask yourself
Does your award file clearly distinguish between the negotiation phase and the special price investigation? Do you understand that repeated price inquiry does not constitute unequal treatment? Do your specification clauses on regularity investigation correctly reference the general price investigation (Art. 43 RD) rather than the special one (Art. 44 RD)?
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 →