When your own counsel can't explain your own document: how Limburg.net lost its bin-bag award
The Council of State suspends the award by waste utility Limburg.net to Sphere Belgium because applying the price formula is not the same as the legally required price examination — a defect that became obvious when the contracting authority's counsel admitted at the hearing that he could not explain his own document.
What happened?
Limburg.net, the Limburg waste-collection inter-communal, launched in May 2019 a European open procedure for polyethylene household refuse bags used in door-to-door collection of non-recyclable residual waste — specification AK09e_190522_huisvuilzakken 2019, divided into three lots. Notice was published in the Bulletin of Procurement on 24 May and in the EU Official Journal on 27 May. Annual quantities: 2,500,000 large bags and 850,000 small bags. Award criteria: Price (45 points), Quality of products (40 points), Reliability and flexibility of delivery (15 points). Only two bidders submitted: Powerpack and Sphere Belgium. Both delivered a base bid, a mandatory variant and a permitted variant. On 25 July 2019, Limburg.net asked both for an extra price for double-sided printing (the original spec was single-sided). The award report scored the bids using a linear price formula (lowest price = 45 points, others proportionally). Sphere's permitted variant scored the highest total at 87.8 points, ahead of Sphere base (82.3) and Powerpack permitted variant (82.2). On 31 July 2019, the Limburg.net board approved the award to Sphere Belgium for the permitted variant: grey bags with a wave-top closure, made of at least 80% recycled plastic, of which at least 50% post-consumer. Powerpack lodged a request for suspension under extreme urgency on 16 August 2019. Sphere intervened. Powerpack raised three pleas; the second plea, second branch, was decisive: violation of article 84 of the 2016 Procurement Act and article 35 of the Royal Decree on Award — the award report did not show any price or cost examination. Powerpack quantified percentage price differences and suggested Sphere's prices might be apparently abnormal. Limburg.net and Sphere defended themselves with one phrase from the award report: 'Pursuant to the specification, it is verified whether the bids meet the requirements of administrative completeness and formal regularity. This verification reveals no irregularities.' Limburg.net additionally pointed to document 8 of the administrative file, said to contain a section on 'abnormal prices'. The Council swept the defence aside. Document 8 prima facie consisted only of a list of unit prices plus a points calculation under the formula — a calculation seemingly performed only for the winning bidder. A points calculation, the Council ruled, cannot be equated with a price examination within the meaning of article 84 of the Act and article 35 of the Royal Decree. The knock-out moment came at the hearing: questioned about the calculation, Limburg.net's counsel admitted he himself did not understand document 8. The phrase relied on by the contracting authority, by its very heading, related only to 'completeness and formal regularity', not to a substantive price examination. The Council found that neither the contested decision nor the administrative file demonstrated that a price examination had been conducted. The second plea was deemed serious; suspension was granted. The third plea, on the quality criterion, was not addressed: without a price examination, that analysis was premature.
Why does this matter?
Many contracting authorities believe that applying a price formula (and writing 'no irregularities') is enough as a price examination. This judgment confirms the opposite: a points calculation and a price examination are two different things. The price examination must substantively verify whether the offered prices are normal — not whether they are high or low compared to other bids. For bid managers this is a lever: if the contracting authority leaves no traces of a real price examination in its award report (no comparison to market prices, no analysis of the winner's pricing, no verification with the bidder), that is a serious irregularity capable of supporting suspension. For contracting authorities the ruling is a warning: document explicitly what you did, not just the outcome.
The lesson
As a contracting authority: a price examination is more than filling in a formula. Document in your award report that you tested the offered prices against market references, prior contracts or the estimate, and be explicit about your conclusion ('prices appear normal because...'). The phrase 'no irregularities' under 'administrative completeness' does not cover that. As a bid manager: in your access request or objection, ask explicitly about the price examination; if it is missing, use it.
Ask yourself
Read your award report (as authority) or the report you received (as bidder). Is there anything more than a points calculation? Are estimates, market prices or prior contracts referenced? Is it explicitly stated that the winning bid's prices are not abnormal? Three 'no's? The price examination is missing.
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 →