With only two tenders, one is not a benchmark for the other — and an 'expectation' in the specifications is not an essential minimum requirement
The Council rejects three grounds: a large price difference on one item does not suffice to establish an abnormal price when the authority conducted a substantiated general price investigation, specifying that one 'expects' something to be fully digital is not a pass/fail minimum requirement, and selective criticism of sub-elements of the reasoning does not undermine a global assessment.
What happened?
The City of Antwerp awards a framework agreement for towing and storing vehicles to the incumbent service provider (107 points vs. 102.54 for the applicant partnership) through a competitive procedure with negotiation. The dispute centers on three points. First ground: the chosen tenderer offers €0.12 for the 'collection fee' item versus €1.03 for the applicants (88% difference), against a maximum price of €10 — insufficient price investigation? Second ground: the specifications require a 'fully operational digital application for real-time monitoring', but the chosen tenderer partly uses manual data entry — substantially irregular? Third ground: the chosen tenderer receives more points for administrative processing despite criticisms in the report, and 9/10 for sustainability where 'good' is noted — inconsistent reasoning?
Why does this matter?
This judgment bundles three core themes that recur constantly in procurement practice. First, price investigation: with only two tenderers, one offer is not an objective benchmark to label the other as abnormal. An incumbent who has already invested in infrastructure can offer a fraction of the maximum price for a post suited to automation — that's not an abnormal price but a competitive advantage. Second, minimum requirements vs. expectations: stating that the authority 'expects' something to be fully digital does not create a pass/fail requirement. It forms part of the qualitative assessment, not the regularity check. Manual entry at the start of a physical process is inherent to the contract. Third: a selective reading of criticisms in the evaluation report does not undermine the global assessment — it's the whole of the reasoning that counts.
The lesson
When specifications state that something is 'expected', this creates an award criterion, not an absolute minimum requirement. Those wanting a true pass/fail requirement must formulate it unambiguously. And for price investigation: a large relative difference on a single item — especially when both prices are fractions of the maximum — does not automatically compel an abnormal price investigation, particularly when context (incumbent, automation, amortized investments) explains the difference.
Ask yourself
Do you formulate specification requirements as 'expectations' or as hard minimum requirements? The difference determines whether non-conformity leads to exclusion or merely a lower score. When facing a price difference on an individual item, have you considered the context — nature of the item, market position of the tenderer, prior investments — before deciding whether an abnormal price investigation is needed? Does your price investigation contain more than a standard formula? The report may be concise if no problems arise, but the administrative file must substantiate the analysis.
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 →