A €10 million administrative centre awarded without price investigation — and the BAFO not even checked
The Council of State annuls the award of a Design, Build & Maintain contract for an administrative centre in Ronse because neither the award report nor the administrative file shows that a price investigation was conducted on the initial tenders or on the winning tenderer's BAFO.
What happened?
The City of Ronse tendered a Design, Build & Maintain contract for an administrative centre — estimated at €7M, ultimately awarded at €11.2M. The procedure was a competitive procedure with negotiation, published at European level. Three tenderers submitted full offers. The specifications required a fixed (lump sum) price with no price revision. After preliminary scoring, the top-ranked tenderer was designated preferred bidder and negotiations were conducted exclusively with this party. During negotiations, the price rose from €9.7M to €11.2M — partly because the city now allowed a price revision formula, despite the specifications explicitly prohibiting revision. The Council of State found the first ground well-founded: no price investigation had been conducted. The city's defenses — an email exchange about built-in price revisions with one tenderer, a price-per-m² comparison, and a colored-markup instruction for the BAFO — were all insufficient. The price criterion scoring is not a price investigation. A question about one component of one offer is not a price investigation. Color-marking changes may facilitate review but doesn't prove it was done. The BAFO regularity investigation was also missing. The award report confirmed regularity of the three initial offers but was silent on the BAFO — which was the basis for the award. The BAFO contained new elements and changed unit prices not all matching the initial offer. The city attempted to submit six additional documents with its final brief to prove a price investigation occurred — these were excluded from the debate as untimely. The award was annulled.
Why does this matter?
This ruling is significant because it's an annulment by the full XIVe chamber (on the merits, not in summary proceedings) of a major Design, Build & Maintain contract. It clearly explains what does and does not constitute a price investigation: scoring the price criterion is not one, a single email about one component is not one, and facilitating review through colored markups doesn't prove review occurred.
The lesson
For contracting authorities: the general price investigation requires a thorough check of all prices in all offers and a mutual comparison of unit and total prices. It doesn't need to be in the award report, but must be traceable in the administrative file. After negotiations, the BAFO must also be subjected to price and regularity investigation. For tenderers: if the award report is silent on price investigation and the BAFO, request the administrative file and check for investigation traces. If absent, you have a strong ground for annulment.
Ask yourself
Is there a trace of the price investigation in your award report or administrative file? Not a scoring table for the price criterion, but an actual review of offered prices? And if you received a BAFO after negotiations: did you subject it to its own price and regularity investigation?
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 →