Lowest price with a submersible pump that doesn't meet the specifications: technical non-compliance costs you the standing to litigate
The Council of State dismisses the extreme-urgency challenge by the joint venture WeGroSan/Antea against the awarding to Sportinfrabouw, because the joint venture — the lowest bidder at 1.39 million euros — submitted three items technically non-compliant with the specifications (submersible pump, irrigation control cabinet, sports underlay) and failed to contest this finding in its petition, depriving it of standing to challenge the award.
What happened?
The municipality of Herenthout tendered the landscaping around the 't Kapelleke sports infrastructure: sports pitches, parking, drainage, planting. Open procedure, estimate 1.67 million euros excluding VAT. Six bids; the joint venture WeGroSan/Antea was lowest at 1.39 million, Sportinfrabouw second at 1.53 million. The designer found the JV's offer deviated by more than 25% on 149 items and requested price justification. The second review report classified the JV's offer as 'substantially irregular' on eight grounds. Three of these established technical non-compliance with essential specifications: the wastewater submersible pump (FEKA brand, multiple versions submitted without selection), the irrigation pump control cabinet (equipment unclear or missing), and the sports underlay beneath the artificial turf (foam at 14 mm instead of 20 mm, 2,543 g/m² instead of 3,800 g/m² — significant given that this was a children's football pitch). The award went to Sportinfrabouw. The JV's challenge focused on the price justification process rather than on the technical findings. It never contested in writing that its offer was non-compliant on the three items; it merely questioned whether those technical requirements were 'essential'. The Council applies its standing rule: an irregular bidder can only challenge an award if its grounds show that its offer was wrongly declared irregular. Here the three technical findings stood unchallenged. The Council also rejected the argument that contract clause 36 — providing for technical-sheet submission within 30 days after award — exempted the authority from verifying compliance before award; the duty under article 95 of the Placement Decree to verify regularity remains, and price justification is a legitimate moment to request technical sheets, since an abnormally low price may signal non-compliance. Petition inadmissible; costs reserved for the annulment ruling.
Why does this matter?
For bidders who are the lowest price and must provide price justification, this ruling is a two-level warning. First, practically: when an authority requests technical sheets as part of a price justification, this is not improper. It is precisely the tool the authority may use to test whether a low price masks a deviation from technical requirements. Second, procedurally: if your offer is non-compliant on specific technical items, that is the first hurdle to address in your petition — as core defence, not afterthought. Whoever fails to contest the irregularity finding loses standing to challenge the entire procedure, regardless of how strong the other grounds are.
The lesson
When submitting an offer where you expect to be lowest, do a surgical pre-submission check on every item with technical specifications — diameter, thickness, weight per m², brand and model. State explicitly in your offer which specific model you offer, not 'a pump of brand X' with multiple variants attached. And if you do go to court: the first ground must contest the irregularity finding, not the price justification process as a whole.
Ask yourself
Did you receive a price justification request that also asks for technical sheets? For each requested item, list three things: what the specifications say, what your offer says, what the attached technical sheet says. Anywhere those three do not perfectly align — e.g. 14 mm where 20 mm was required, or multiple models listed without selection — you have an irregularity risk that must be addressed before award.
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 →