Missing 100 ml is a detail, missing 700 ml is an irregular bid — proportionality cuts both ways
The Council of State rejects SCA Hygiene Products' challenge to the award of a public welfare centre's nursing products framework to Ontex and rules that a 700 ml absorption shortfall against a 3,800 ml specification is materially different from a 100 ml shortfall — no breach of equal treatment.
What happened?
An OCMW launched an open tender for a nursing products framework agreement for nine retirement homes. Lot 1 covered incontinence protection, with weight criteria of price (60%), quality (20%, tested in home) and social/environmental policy (20%). Five offers were submitted including SCA Hygiene Products and Ontex. The tender required samples meeting ISO absorption norms of both 3,100 ml and 3,800 ml for the XL category. SCA submitted 3,100 ml samples for both because it had no 3,800 ml product. On 22 May 2015 the OCMW declared SCA's offer irregular and awarded lot 1 to Ontex. SCA invoked unequal treatment: Ontex had four out of 21 products below ISO norms but its offer was not declared irregular. The Council of State (vacation chamber) ruled that the situations were not comparable: a 100 ml shortfall in some Ontex products could reasonably be considered non-essential and concerned only light incontinence, whereas a 700 ml shortfall affecting an entire product category was material. The tender expressly provided that failure to deliver requested samples leads to exclusion. The suspension was rejected; SCA was ordered to pay €700 procedural costs.
Why does this matter?
Losing bidders often invoke equal treatment after the fact: 'Ontex also had deviations and was not excluded — so we should not be either'. This judgment shows that inequality is not assessed at the level of 'both had something wrong' — it depends on the nature and magnitude of the deviation. A contracting authority may (and must) assess deviations qualitatively: a 700 ml shortfall is a different matter than a 100 ml deviation. Before submitting with an incomplete sample or a 'similar' alternative, consider this threshold.
The lesson
If the tender sets specific requirements for samples or test products (precise standards, product lines, variants): deliver them all. If you cannot meet a requirement, do not quietly substitute an alternative. Report the issue beforehand and request a formal clarification. Arguing afterwards that 'the deviation was not material' rarely works — and once your offer is declared irregular, it cannot be rescued by comparison with a competitor's smaller deviations.
Ask yourself
Did your bid team systematically tick off every sample requirement against what you actually deliver before submission? Concretely: if the requirement is 3,800 ml and your product reaches 3,100 ml — did you report it, or (more wisely) decide not to bid on that lot?
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 →