Council of State rejects annulment appeal against award of Materialenkaai green space works – price investigation screening method with 0.5 percent threshold of average total price is acceptable and assessment of price justification falls within discretion
The Council of State rejected the annulment appeal by NV C.N. against the award of the public works contract for the construction of a green and recreational space on the Materialenkaai to NV D.A.O., because the screening method used in the price investigation — a threshold of 0.5 percent of the average total price of all submitted tenders to identify non-negligible items — was acceptable and the assessment of the price justification for two items with apparently abnormally low unit prices fell within the contracting authority's discretion.
What happened?
The Belgian State, through Beliris, tendered through an open procedure a public works contract for the construction of a green and recreational space on the Materialenkaai in Brussels, with price as the sole award criterion. Five tenderers submitted bids ranging from €14,050,501.79 to €19,227,917.08. Two were declared irregular. The contract was awarded to NV D.A.O. at €14,797,127.30. NV C.N. had submitted the second-lowest price of €15,091,039.01 — a difference of less than 2 percent. A prior emergency suspension request had been rejected. NV C.N. raised three grounds. The first challenged the screening method: the authority used a threshold of 0.5% of the average total price of all tenders (lower than its standard 2%) to identify non-negligible items for price investigation. The Council found the legislation imposes no specific criteria for selecting items to investigate; the authority has discretion provided criteria are carefully designed and reasonable. The method differed from prior case law cited: the reference was the average total of all tenders, not each individual tender. Additional criteria (average unit price, non-critical nature, lump-sum character, volume increase risk) further refined the assessment. Not well-founded. The second ground challenged the decision not to conduct a special investigation into two items (posts 686 and 688, part of a mandatory lighting option). The Council found the authority had properly compared prices with the estimate, average, and other tenderers, and the chosen tenderer's prices were not the lowest. The authority need only assess whether prices appear abnormal, not prove they are market-conform. The total price difference of less than 2% was also relevant. Not well-founded. The third ground challenged the assessment of price justifications for post 23 (site fencing, 76.37% below average) and post 137 (soil treatment, 45.12% below average). For post 23, the chosen tenderer owned the required fencing and included a 17.8% margin. For post 137, the tenderer provided a subcontractor's offer plus 17.8% margin; the confidential file contained additional price detail, and under Article 36 §3(3), the authority may also consider information not from the tenderer. The formal motivation duty was satisfied. Not well-founded. The appeal was rejected. Costs (€200 court fee, €22 contribution, €770 procedural compensation) were charged to the applicant.
Why does this matter?
This ruling provides extensive analysis of the contracting authority's discretion in price investigation — both in designing the screening method and assessing price justifications. The legislation imposes no specific criteria for selecting items to investigate: the authority may use screening criteria provided they are carefully designed and reasonable. A 0.5% threshold of the average total price of all tenders, combined with additional qualitative elements, reflects a more refined investigation. In the general price investigation, the authority need only assess whether prices appear abnormal, not prove they are market-conform. When assessing price justifications, Article 36 §3(3) allows the authority to also consider information not originating from the tenderer. The Council reviews these assessments only marginally.
The lesson
The contracting authority has broad discretion in designing the screening method for price investigation. A threshold based on the weight of items in the average total price of all tenders is acceptable, provided the methodology includes additional assessment criteria and stays within reasonable bounds. In the general price investigation, it suffices to assess whether prices appear abnormal — proving market conformity is not required. When assessing price justifications, the authority may also consider information not originating from the tenderer. If the award decision provides sufficient clarity on the reasoning, the formal motivation duty is satisfied — the price investigation need not be reproduced in extenso.
Ask yourself
As a contracting authority: is your screening method carefully designed with supplementary criteria beyond a weight threshold? When assessing price justifications, have you considered not only the tenderer's explanations but also information from the administrative file? As a tenderer: are you demonstrating manifest unreasonableness in the screening method, or merely criticizing the threshold choice? And are you showing that the price justification assessment exceeds the bounds of discretion — not simply that another authority might have decided differently?
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 →