Annulment of Project FAST award decision due to careless price determination in specifications — maximum unit prices unchanged since 2013 without any cost investigation, Labonorm confirmed, eVigilo distinguished, notification duty under art. 81 does not apply to alleged illegality of specifications
The Council of State annuls the award decision for lot 7 of Project FAST (highway incident management) because the contracting authority left the maximum unit prices unchanged since 2013 without investigating whether those rates still allow normal business operations and profitability, and confirms the right to invoke the illegality of tender specifications for the first time when challenging the award decision (Labonorm).
What happened?
The Flemish Government (Roads and Traffic Agency) tendered a framework agreement for highway incident management services ('Project FAST'), divided into lots per highway segment. The specifications contained maximum unit prices that tenderers could not exceed. The applicant's offer was declared substantially irregular due to an incomplete tender form. On the merits, the applicant argued the specifications themselves were unlawful because the maximum prices had been carried over unchanged from 2013 without any investigation into whether they still allowed normal operations and profitability. The Council confirmed the Labonorm case law: a tenderer may invoke the illegality of specifications when challenging the award decision, without having to challenge them separately beforehand. The Council distinguished the eVigilo judgment (CJEU C-538/13), which does not impose an obligation to immediately challenge specifications. The notification duty under Article 81 of the Royal Decree was found to apply only to 'errors or omissions', not to alleged illegality. The Council annulled the award for violation of the duty of care: the authority had imposed maximum prices from 2013 without any documented cost investigation, despite inevitable cost increases over more than ten years.
Why does this matter?
This judgment is significant for several reasons. It expressly confirms the Labonorm case law on challenging specification legality via the award decision. It clearly distinguishes eVigilo from Labonorm. It clarifies that the notification duty under Article 81 applies only to errors or omissions, not to alleged illegality. And it concretizes the duty of care: authorities imposing maximum rates must conduct a proper cost investigation and cannot simply carry over prices from specifications over ten years old.
The lesson
As a contracting authority: conduct a current cost investigation when including maximum rates in specifications. Carrying over ceiling prices from old specifications without justification violates the duty of care. As a tenderer: you are not required to challenge specification illegality before submitting your offer — you may raise this for the first time when challenging the award decision (Labonorm).
Ask yourself
Have you based the maximum rates in your specifications on a current and documented cost investigation? Or have you carried over rates from previous specifications without verifying they still allow normal business operations?
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 →