Suspension of award of lot 2 for new TEC bus depot in Tilleur — contracting authority wrongly applied Article 43 verification instead of Article 44 examination when abnormal prices were suspected and statement of reasons for price normality was insufficient
The Council of State suspended under extreme urgency the award by the OTW of lot 2 (private infrastructure) for the construction of the new TEC bus depot in Tilleur to the SSM GALERE-DUCHENE, because the contracting authority — although its own tender examination report identified several unit prices as 'abnormally low' or 'abnormally high' — failed to apply the Article 44 price examination procedure of the Royal Decree on special sectors and instead limited itself to an information request under Article 43, while the formal statement of reasons for considering the prices normal was insufficient, consisting only of a formulaic statement that the justifications 'left no suspicion of abnormal prices'.
What happened?
The OTW published an open procedure on 2 July 2024 for works concerning the construction of a new TEC bus depot in Tilleur ('Mobi'Park TEC'), divided into 15 lots and financed by European PNRR funds. SA ELOY TRAVAUX submitted offers for lots 1-4. For lot 2 ('Private infrastructure: sewerage, roads and surroundings'), its offer was EUR 14,992,120.40 TVAC; the only other tenderer, SSM GALERE-DUCHENE, offered EUR 20,441,907.14. After arithmetical verification, amounts were corrected to EUR 15,229,223.40 and EUR 19,425,093.54 respectively. On 19 September 2024, the OTW asked both tenderers under Article 43 of the Royal Decree on special sectors to provide 'information' about 21 and 9 unit prices respectively. The tender examination report (21 November 2024) set out criteria for identifying abnormal prices (15-30% deviations from lowest/highest price, average, or estimate) and flagged 21 posts in ELOY's offer and 9 in GALERE-DUCHENE's as 'abnormally low' or 'abnormally high'. ELOY's offer was declared substantially irregular for three technical non-conformities (posts 468, 79 and 169). GALERE-DUCHENE's justifications were assessed with the sole statement that they 'left no suspicion of abnormal prices'. Only 2 of 9 flagged posts (posts 484 and 540) received substantive assessment in the project authors' report. On 4 December 2024, lot 2 was awarded to GALERE-DUCHENE for EUR 19,425,093.54. ELOY TRAVAUX filed a suspension application under extreme urgency on 20 December 2024, raising a single ground in two limbs. First limb: the OTW had identified unit prices as potentially abnormal in its own report but limited itself to an Article 43 information request instead of applying the Article 44 price examination, in breach of the principle patere legem quam ipse fecisti. Second limb: the statement of reasons for considering the prices normal was insufficient. The Council confirmed the applicable principles. Articles 41, 43 and 44 of the Royal Decree on special sectors provide for a two-phase price control. In phase 1 (Article 43), the authority verifies prices and assesses whether certain prices appear abnormally low or high. In phase 2 (Article 44) — when abnormality is suspected — the authority must invite the tenderer to provide written justifications and make a concrete, effective assessment. The single ground was found serious in both limbs. The OTW's request for a balance of interests (arguing potential loss of EUR 105 million EU subsidy) was rejected as insufficiently demonstrated. Suspension was ordered.
Why does this matter?
This ruling clarifies the distinction between the two phases of price control in special sectors. Phase 1 (Article 43): the authority verifies prices with broad discretion. Phase 2 (Article 44): when abnormality is suspected, the authority must invite written justifications and make a concrete, effective assessment with precise reasoning. The authority cannot limit itself to an Article 43 information request when its own analysis flags prices as abnormal. The balance of interests is not automatic: the authority must concretely demonstrate the risk of serious consequences.
The lesson
As a contracting authority in special sectors: when your own price analysis identifies unit prices as potentially abnormal, you must apply the Article 44 procedure — not merely request information under Article 43. The decision to consider prices normal must be concretely and effectively reasoned per examined post; a formulaic statement is insufficient. As a tenderer: check whether the contracting authority followed the correct procedure when abnormal prices were suspected.
Ask yourself
As contracting authority: when prices were flagged as potentially abnormal by your own criteria, did you apply Article 44 with written justification requests and concrete assessment? Or did you limit yourself to an Article 43 information request? Is your reasoning for price normality concrete and effective, or formulaic? As tenderer: does the tender examination report show that unit prices were flagged as potentially abnormal, and if so, was the correct procedure followed?
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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 →