Five lines that explain nothing: the Council of State suspends Gembloux’s award because the city never said why the price justification fell short
The city of Gembloux declared the tender of Entreprises M.I.G.N.O.N.E. for lot 1 of the Notre-Dame street structural works substantially irregular on account of an abnormally low total price and awarded the contract to Bajart for 839,229.04 euros, but communicated only a boilerplate formula, without a single word about the price justification actually submitted; because such reasoning allows neither the tenderer nor the court to verify that the justification was ever genuinely examined, the Council of State suspended the award under extreme urgency.
What happened?
On 9 January 2026 the city of Gembloux published a public works contract in the Bulletin of Awards for the ‘remembrement’ of the buildings at 16 and 18 rue Notre-Dame in Gembloux, governed by the special specifications with reference DAG-2332/TLAR/PBER/CVAN2332_NOTRE_DAME. The case concerns lot 1, ‘structural work and finishings’: the demolition of two mixed-use buildings and the reconstruction of a complex comprising a shop and a single-family dwelling. The procedure chosen was the open procedure with price as the sole award criterion. By the closing date of 25 March 2026, five tenderers had submitted offers; at the opening, M.I.G.N.O.N.E. ranked fourth. By letter of 21 April 2026 the city questioned it, under article 36, § 2, of the royal decree of 18 April 2017, about the total price of its tender, which appeared abnormally low — according to the applicant, that request expressly covered three specific unit prices as well. M.I.G.N.O.N.E. replied on 29 April 2026. On 25 June 2026 the municipal college decided to award the contract to Bajart for 839,229.04 euros including VAT and to approve the design author’s tender evaluation report. In the same decision, M.I.G.N.O.N.E.’s tender was declared substantially irregular because its total price was considered abnormally low. The notification of 25 June 2026 devoted five lines to this: a price justification had been requested on 21 April, it had been supplied on 29 April, and ‘after analysis of the justification of the total amount of the tender, it appears that the elements provided do not sufficiently demonstrate the realistic and economically viable character of the offer’. Absent sufficient and detailed justification, the contracting authority was unable to dispel the doubt as to the abnormally low character, so the tender had to be set aside. What exactly was missing was not stated. Before the Council of State the city immediately acknowledged that it had ‘made an error in communicating the reasons’: they had not been communicated in full, and this was remedied in its observations and in the administrative file. The Council restated the settled rule: a breach of article 8, § 1, first paragraph, of the Law of 17 June 2013 concerns a formality subsequent to the reasoned decision and cannot affect its legality — but it does entitle the applicant to direct its pleas at the award decision as a whole as it appears in the administrative file, and even to raise new pleas against that decision afterwards. That did not help the city. It also relied on the tender evaluation report of 19 June 2026, which the award decision approves. Reasoning by reference to such a report is permissible, the Council held, but only if the report has been brought to the addressee’s knowledge no later than when the decision is communicated. Here M.I.G.N.O.N.E. saw it only when the administrative file was lodged, so reasoning by reference was inadmissible. What remained were solely the reasons in the notification letter and in the award decision of 25 June 2026 — and these contained no reference whatsoever to the content of the price justification, let alone any analysis of it. The Council called that reasoning deficient and akin to a boilerplate clause: it does not allow the tenderer to understand why its explanations were held insufficient, nor to satisfy itself that they were actually and concretely analysed before its tender was declared void. The interest in the complaint was established: the defect deprived M.I.G.N.O.N.E. of the ability to assess, in full knowledge, whether and how to bring an action, and of the safeguard against administrative arbitrariness that the duty to state reasons represents. The single plea was serious. On the balancing of interests under article 15, third paragraph, of the Law of 17 June 2013, the city merely referred to ‘the wisdom of the Council of State’ and identified no adverse consequence of a suspension, nor any urgency in performing lot 1. Of its own motion the Council added that the mere fact that the contract had already been concluded does not suffice to tip the balance in the authority’s favour. Suspension under extreme urgency was ordered. Items 3 and 5 of the applicant’s file and items A to J of the administrative file remain confidential at this stage; costs were reserved.
Why does this matter?
The judgment touches on two things that repeatedly go wrong in abnormally-low-price reviews. The first is the temptation of conclusory reasoning: the authority writes down the outcome of its assessment — ‘insufficient and not detailed’ — without showing the assessment itself. Precisely because article 36 of the royal decree of 18 April 2017 obliges it to appraise the justification received, the decision must show that and how it did so. Otherwise no one can verify — neither the tenderer nor the Council of State — whether the rejection rests on a genuine, individualised examination or on an abstract impression. That is not formalism: the duty to state reasons is the safeguard against administrative arbitrariness, and losing that safeguard is by itself enough of an interest to found the complaint. The second is the timing of reasoning by reference. A tender evaluation report may carry the reasoning where the authority adopts its content as its own, but only if the tenderer holds it no later than at notification. A report that surfaces only during the proceedings before the Council repairs nothing: it comes too late to support the decision. An authority that builds its reasoning on a report and withholds that report is effectively left with nothing. Finally, the judgment shows what an authority risks in the interim phase by advancing nothing. Gembloux referred, on the balance of interests, to the Council’s wisdom and named no concrete disadvantage — leaving nothing to weigh. And the fact that the contract had already been concluded did not help on its own: a signed contract is no safe conduct against suspension.
The lesson
If, as a contracting authority, you set aside a tender for an abnormally low price, write into the decision itself what the tenderer put forward and why it falls short — item by item, with the figures. ‘Insufficient and not detailed’ is a conclusion, not reasoning. If you requested justification of both the total price and certain unit prices, address both expressly. If you wish to rely on the tender evaluation report, send it with the notification; supply it only with the administrative file and it will not count. And take care over the notification itself: Gembloux admitted the reasons had not been communicated in full — that does not affect the legality of the decision, but it opens up the entire award decision to the rejected tenderer and allows new pleas to be raised later. If, as a tenderer, your offer is set aside after a price justification, read the reasoning as a test: can you tell from it which part of your explanation failed to convince? If not, you have a serious plea, without having to prove first that your price was in fact normal. In the same move, request confidential treatment of your tender and your price justification — the Council granted it here for both parties. And do not be deterred by a contract already concluded: that does not prevent suspension.
Ask yourself
Does your rejection decision contain your own analysis of the price justification received, or only the conclusion that it was inadequate? If you requested justification of both the total price and certain unit prices, did you address both expressly? Was the evaluation report you rely on delivered to the tenderer no later than the notification? And as a tenderer: can you tell from the reasons communicated to you which element of your explanation fell short — and if not, have you raised that defect as a plea in its own right, rather than confining yourself to arguing that your price is normal?
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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 →