What you didn't impose 'on pain of substantial non-conformity' you can't later treat as essential
The Council of State suspends SPGE's decision to retroactively declare Carmeuse's bid irregular for deviating from a technical specification that the specifications had NOT marked 'on pain of substantial non-conformity' — and which cannot be promoted to essential after the fact.
What happened?
In July 2014, SPGE launched a tender for chemical reagents for water treatment. Lot 4 covered lime products in various qualities: 20% calcium lime milk drinking water quality, 30% calcium lime milk drinking water quality, hydrated lime drinking water quality AND hydrated lime 'technical quality' (for incineration). The specifications made an explicit distinction: for the three 'drinking water quality' products, technical specs were imposed 'on pain of substantial non-conformity'. For the hydrated lime 'technical quality' (incineration), no such sanction was attached. On 28 November 2014, SPGE awarded lot 4 to Carmeuse. But later — after an external technical analysis by consultant Almadius — it turned out Carmeuse's proposal for technical lime deviated from the descriptive section of the specifications. On 24 April 2015, SPGE took a new decision: withdrawing its earlier award, declaring Carmeuse's bid irregular, and relaunching the procedure — possibly via another mode and without the 'hydrated lime technical quality' part. Carmeuse filed an urgent suspension. The Council of State suspends. Article 95, §3 RD 15/07/2011: a bid is substantially irregular only if it deviates from provisions that are 'essential'. The law does not define 'essential' — the authority has discretion — but must motivate its choice concretely and acceptably. The essential character can flow from the authority's will expressed in the specifications. Here the specifications expressed that will very clearly by imposing 'on pain of substantial non-conformity' for some specs and not for others. By treating a non-sanctioned specification as essential anyway, SPGE went against its own distinction. SPGE further argued: without strict compliance, bids would be incomparable. The Council rejects: article 7, §§2-3 RD always allows bidders to prove equivalence — either the spec allows equivalents (then comparability is no issue), or it does not (then the spec itself is unlawful).
Why does this matter?
For bid managers: read the specifications not just for what they say but for how they are structured. Specs with the formula 'on pain of substantial non-conformity' are hard limits — no deviation allowed. Specs without that formula are descriptive requirements that you may deviate from with motivated equivalent solutions. For authorities: if you make that distinction in your specs, you are bound by it. It is tempting to promote a spec to essential later when a bid seems 'not ideal' — but it will not hold.
The lesson
If your bid is rejected for non-conformity with a technical spec, first check: did that spec carry an explicit 'on pain of substantial non-conformity' sanction? If not, the authority cannot treat it as essential. Second check: did your bid propose an equivalent solution meeting the same functional requirements? Article 7 RD 15/07/2011 gives you that right — use it.
Ask yourself
Suppose you face a withdrawal-and-relaunch of a contract you had won, citing non-compliance with a technical spec. Open the specifications again. Mark every place that says 'on pain of substantial non-conformity'. Is the disputed spec among them? If not, you likely have a strong case.
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 →