Below the European threshold a contracting authority is not required to ask for price justification — but 'not required' is not the same as 'forbidden'
The Belgian Council of State suspends an award because the Province of Antwerp rejected a sole trader's offer for an abnormally low hourly rate of €34.70 without first questioning the bidder — when the tender concerns intellectual services without any indicative quantity, mere price difference is insufficient to unilaterally conclude the price falls 'below cost'.
What happened?
In 2022 the Province of Antwerp launched a framework agreement for copywriting and graphic design — simplified negotiated procedure with prior publication, two lots, estimated value €100,000 per lot (excl. VAT). Twenty candidates submitted bids. The bid form only asked for an hourly rate per lot. No indicative quantity, no indication of the average number of hours per assignment. Gunther Segers, a sole trader with home office in Wallonia and 25 years of experience as a graphic designer, bid €34.70/hour for both lots — well below the other bidders. In the award report the province calculated: his price was 52% below the average for lot 1 and 54% below the average for lot 2. Even compared to a similar 2020 contract (then €64.59 and €64.11 as average), Segers was still significantly cheaper, despite 'the many wage indexations of recent years'. The province applied a norm of its own making: 'for a self-employed person it is calculated that he must earn 50 to 60 euros per hour to make ends meet, taking into account the withholding taxes he must deduct himself'. Conclusion: the price lies 'below cost', which 'leads to distortion of competition and renders the bidder's commitment to perform under the stated conditions non-existent or at least uncertain'. The offer was set aside as substantially irregular under articles 35 and 76 of the Royal Decree on placement 2017. No price justification was requested: art. 36 of the Royal Decree — which contains the questioning obligation — does not apply under §6 to negotiated procedures below the European threshold, and the province felt 'there are sufficient grounds to reject the offer'. Segers filed extreme urgency proceedings before the Council of State. His defence was concrete: as a sole trader with home office he has no rental and personnel costs like most other bidders (companies established in 'larger and more expensive cities in Flanders'), he has been working for major clients for 25 years, and at a reduced 15% tax rate on copyright income he nets €3,000/month at that rate. The Council of State sided with him prima facie. First the legal line: art. 36 §6 of the 2017 Royal Decree does indeed exclude the mandatory questioning procedure for negotiated procedures below the European threshold. But — and this is the heart of the judgment — the general price examination duty under art. 35 and art. 84 of the 2016 Procurement Act remains fully applicable. And within that general examination, the contracting authority may always ask a bidder for concrete information. 'Absence of obligation' is not the same as 'prohibition'. Factually the Council pointed to two elements that made the mere price difference insufficient here. First: 'in the context of a contract for intellectual services, such as the present one, considerable price differences occur more often'. Second: the tender only asked for an hourly rate, without indicative quantity or explanation of the number of hours required per type of assignment. As a result, the province could not assess whether the hourly rate fell 'below cost' — there was no cost price to compare against. In those concrete circumstances, the Council ruled, the careful execution of the general price examination required Segers to be questioned before his offer was rejected. Suspension granted for both lots.
Why does this matter?
For contracting authorities this is a warning against mechanical application of internal cost-price norms to intellectual services. A sole trader with home office has a fundamentally different cost structure than an agency with rent and payroll — and a 50% difference in hourly rate is no automatic proof of dumping for creative services. For bidders who work with sharp prices — freelancers, sole traders, home-based specialists — this is the judgment that makes clear you cannot be kicked out of a procedure without being heard. But equally: build your file so you can substantiate your pricing in one email (corporate structure, tax optimisation, productivity, client portfolio). For procedures below the European threshold the temptation is great to read art. 36 §6 as 'no questioning obligation = free hand'. This judgment says: no. The general due diligence duty and the basic examination under art. 35 + 84 still apply, and in 'certain cases' they require questioning anyway.
The lesson
If as a contracting authority you want to reject a strikingly low offer in a negotiated procedure below the European threshold, ask yourself three questions. (1) Does the tender contain an indicative quantity or unit against which I can measure 'cost price'? If not — question the bidder. (2) Are these intellectual/creative services where large price differences are normal? If yes — question. (3) Do I have concrete elements from the file itself that explain or refute the low price, or does my 'below cost' finding rest only on internal estimates and general norms? If the second half of (3) is yes — question. One email to the bidder asking for justification within 12 days costs you nothing and blocks this suspension ground.
Ask yourself
If you want to reject an offer for abnormally low price in a simplified or non-European procedure: can you explain in two sentences what the 'cost price' is below which the offer falls, based on something other than the average of other offers and your own internal estimate? If the answer is 'no, not really' — request a price justification before rejecting.
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 →