The abnormally low price in Belgian public procurement

The rule: check prices, then examine those that look abnormal

Article 84 of the law of 17 June 2016 requires the buyer to check tender prices. The royal decree of 18 April 2017 on the award of public contracts sets this out in three steps: correct arithmetic and purely clerical errors (article 34), check prices or costs (article 35), then examine those that look abnormally low or high (article 36). Consolidated French text read on Wallex on 31 October 2026: Royal decree of 18 April 2017, consolidated French text (Wallex)

For the check, the buyer may ask the tenderer for any information it needs. In procedures with negotiation, the examination covers the last tenders submitted, but the buyer may do it earlier.

Twelve days to justify in writing

When a price or cost looks abnormal, the buyer asks the tenderer to justify in writing how that price is made up within twelve days, unless the request sets a longer period (article 36, § 2). The tenderer bears the burden of proving it sent the justifications. The buyer need not ask about negligible items, and may ask a second time with a shorter period.

The justifications cover, among other things, these points from article 36, § 2:

• the economics of the construction method, manufacturing process or service provision;
• the technical solutions chosen or exceptionally favourable conditions available to the tenderer;
• the originality of the works, supplies or services offered;
• any public aid lawfully granted to the tenderer;
• compliance with the environmental, social and labour law obligations in article 7 of the law, including well-being, wages and social security.

What the buyer decides next

Under article 36, § 3, the buyer assesses the justifications and reaches one of three outcomes. It may also use information that does not come from the tenderer, provided it shows it to the tenderer so it can respond.

Whether the tender is rejected or kept, the reasoned award decision is followed by the standstill period and the remedy time limits of the law of 17 June 2013, explained in the standstill and remedies guide: Standstill and remedies

1. One or more non-negligible items remain abnormal: the tender is rejected as substantially irregular.
2. The tender’s total remains abnormal: the tender is rejected as substantially irregular.
3. The total is not abnormal: the buyer gives its reasons in the award decision.

The 15 % below average rule

Article 36, § 4, makes the examination mandatory in one case: a works contract, or services in a fraud-sensitive sector, awarded by open or restricted procedure on price alone, with at least four tenders considered. Every tender whose total is at least 15 % below the average is then examined. The rule also applies when price weighs at least 50 % of all criteria; the procurement documents may then set a higher percentage. They may also extend it to other supplies or services awarded on price alone.

When article 36 does not apply

Unless the procurement documents say otherwise, article 36 does not apply to the competitive procedure with negotiation, the direct negotiated procedure with prior publication or the negotiated procedure without prior publication, for supplies or services below the EU thresholds or works below €500,000 (article 36, § 6). The negotiated procedures are explained here: Negotiated procedure

Who is told when a tender is rejected

Article 36, § 5, requires the buyer to notify immediately:

• the auditor general of the Belgian Competition Authority, for any tender rejected for an abnormal price or cost;
• the Social Information and Investigation Service, if the tender is abnormally low because it breaches federal social or labour law;
• the European Commission, if it is abnormally low because of State aid incompatible with the internal market;
• the contractor accreditation commission, for a works contract: Contractor accreditation

What an SME prepares before submitting

These points follow from the articles cited. They do not replace reading the procurement documents of the contract concerned.

1. Read the award criteria and the weight of price: at 50 % or more for works, the 15 % rule may apply. Award criteria
2. Keep the calculation behind each major item: labour, materials, subcontracting, margin.
3. Document what explains a low price: method, stock, proximity to the site, technical solution, public aid received.
4. Be able to show compliance with wages, social security and well-being rules.
5. If a request arrives, answer in writing within the stated period and keep proof of sending.

What AOEX does and does not do

AOEX reads TED notices and public e-Procurement notices. When a published contract is open, the tender kit reads the published documents, including the award criteria, and dictates the fields of the reply: Tender kit The term “abnormal price” is also in the glossary: Glossary

AOEX does not calculate your price, write your justifications, submit the tender or say who will win. This page is not legal advice. The text to follow remains the royal decree, the law of 17 June 2016 and the procurement documents: Guide to the law of 17 June 2016

Frequently asked questions

What is an abnormally low price in a Belgian public contract?

A price or cost that looks abnormally low or high when the buyer checks the tenders. The buyer must then examine it and ask the tenderer for written justifications (royal decree of 18 April 2017, articles 35 and 36, French text read on Wallex on 31 October 2026).

How long do I have to justify my price?

Twelve days, unless the buyer’s request sets a longer period (article 36, § 2). In the negotiated procedure without prior publication, the procurement documents may set a shorter period, with express reasons. If the buyer asks again, the period may be shorter. The tenderer must prove it sent the justifications.

What is the 15 % rule?

For a works contract, or services in a fraud-sensitive sector, awarded by open or restricted procedure on price alone, with at least four tenders considered, the buyer must examine every tender whose total is at least 15 % below the average of the tenders (article 36, § 4). The rule also applies when price weighs at least 50 % of the criteria.

Can the buyer reject my tender for an abnormal price?

Yes, after examining the justifications: if one or more non-negligible items, or the total, remain abnormal, it rejects the tender as substantially irregular. Otherwise it must state in the award decision why the total is not abnormal (article 36, § 3).

Who is told when a tender is rejected for an abnormal price?

Always the auditor general of the Belgian Competition Authority. Also the Social Information and Investigation Service for a breach of federal social or labour law, the European Commission for incompatible State aid, and the contractor accreditation commission for a works contract (article 36, § 5).

Does AOEX check whether my price is abnormal?

No. AOEX reads TED notices and public e-Procurement notices and helps read the published documents, including the award criteria and the weight of price. AOEX does not calculate your price, write justifications, submit a tender or give legal advice.

Sources

Royal decree of 18 April 2017 on the award of public contracts in the classic sectors, articles 33 to 36, consolidated French text read on Wallex on 31 October 2026: Royal decree of 18 April 2017, consolidated French text (Wallex) Justel: Royal decree of 18 April 2017 (Justel)

Law of 17 June 2016 on public procurement, article 84 (price check): Law of 17 June 2016 (Justel) Open procedure: Open procedure