Five lump-sum items per lot for towing services is sufficient: professional tenderer can calculate average price based on sector knowledge
The Council of State rejects the challenge against the award of a towing services contract because the contracting authority has broad discretion in drafting the inventory, the breakdown into five lump-sum items per lot is not unusual in the sector, and a professional service provider should be able to calculate a reasonable average price.
What happened?
Police Zone 5421 Assenede-Evergem launched an open procedure for a price-list contract for towing vehicles within its territory. The contract was divided into three lots by vehicle weight: lot 1 (vehicles ≤ 3.5 tonnes, including motorcycles and mopeds), lot 2 (vehicles > 3.5 and ≤ 7.5 tonnes) and lot 3 (vehicles > 7.5 tonnes). The inventory contained five items per lot, corresponding to the five sub-criteria of the award criterion 'price' (75 points): a lump-sum rate for weekdays during the day (08:00-20:00), weekday nights (20:00-08:00), weekends and public holidays, unnecessary trips (max. 75% of the respective rate) and storage costs per full day. The award criterion 'quality of service' counted for 25 points. Only two tenderers submitted bids. NV D. only tendered for lots 2 and 3, while the other tenderer bid for all three lots. NV D.'s offer was declared substantially irregular due to the absence of a sufficiently recent extract from the criminal register and an overview of the vehicle fleet. All three lots were awarded to the other tenderer. NV D. had already lodged an annulment appeal against the specifications themselves before the opening of tenders (separate case). In the present urgent suspension proceedings, it challenged both the award decision and the decision to declare its offer irregular. However, its single ground focused exclusively on the inventory breakdown: the five items were allegedly insufficiently detailed because each item encompasses widely varying towing situations — from a simple roadside repair to a complex recovery after a serious accident. NV D. argued that without knowing the expected distribution across those sub-categories, it could not calculate a correct unit price and had to speculate. In support, it referred to the FAST specifications of the Agency for Roads and Traffic, which uses a much more granular inventory with approximately eighty items for towing services on motorways. The Council rejected the ground on several bases. First, the contracting authority has broad discretion in determining the items of the inventory. The choice of a price-list contract does not prima facie impose an obligation to provide separate items for every possible sub-service. Second, differentiation had already been taken into account: the division into three lots by vehicle weight, the distinction between day and night, weekday and weekend, and separate items for unnecessary trips and storage costs. Third, the breakdown used is not unusual in the sector — other police zones use a comparable structure. Fourth, the FAST specifications are not comparable: the motorway context (speed of intervention, required signalling, contract volume) differs fundamentally from that of a local police zone. Fifth, NV D. does not demonstrate that, as a professional service provider, it could not calculate an average price — it did in fact submit a tender for lots 2 and 3. Sixth, the Council held that the specifications — which do not have the individual scope of the Act of 29 July 1991 — are not subject to the formal duty to state reasons. Moreover, the choice was justified by administrative efficiency and simplicity in price comparison.
Why does this matter?
This ruling illustrates the broad discretion of contracting authorities in drafting the inventory of a price-list contract. Not every possible variation in performance needs to be reflected in a separate item. With lump-sum unit prices, the tenderer by definition bears the risk of variations within an item and must set its price based on sector knowledge. The ruling also underscores that comparing with specifications from a different context — here the FAST specifications for motorways versus a local police zone — is not sufficient to demonstrate that one's own breakdown is inadequate. Finally, the ruling confirms that specifications are not an individual administrative act and are therefore not subject to the formal duty to state reasons under the Act of 29 July 1991.
The lesson
The choice of a limited number of broad lump-sum items in the inventory is defensible, especially for a price-list contract. Do not blindly compare your inventory with specifications from a different context — a police zone has fundamentally different needs than a motorway manager. As a tenderer, you are expected to know your market well enough to calculate an average price for lump-sum items that accounts for the diversity of possible scenarios. If you wish to challenge the specifications, do so before the submission of tenders through the appropriate legal remedies, and specify concretely where the threshold for a sufficiently detailed inventory should lie.
Ask yourself
Does your inventory breakdown match the concrete needs of your contract, or are you blindly copying a structure from another set of specifications? As a tenderer, do you know the standard breakdown in your sector and can you calculate a reasonable average unit price based on your sector knowledge? If you find the specifications too vague, have you lodged a timely challenge before the opening of tenders?
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 →