An email from the contracting authority does not amend the specifications — bidding below the minimum capacity remains a substantial irregularity
The Council of State rejects Stago BNL's extreme-urgency appeal against the award of four haemostasis analyzers to Siemens, because Stago offered devices with 260 and 100 analyses per hour where the specifications required 300 and 150 — and because a clarifying email from the hospital to Stago alone, which did not address capacity, could not override the specifications.
What happened?
On 25 June 2015 the Hôpitaux Iris Sud (the merged hospital group of Anderlecht, Saint-Gilles, Etterbeek and Ixelles) published an open call for tenders for the provision, full-service maintenance and supply of reagents for four haemostasis analyzers. The devices were to be installed at three sites: two in the main lab in Etterbeek-Ixelles and one in each of the satellite labs Molière Longchamp and Joseph Bracops. Title III of the specifications ('Technical requirements') was explicit. For the main lab the bidder had to offer one device with a cadence of at least 300 TCA/TP analyses per hour and one back-up device of at least 150 TCA/TP per hour. For each satellite lab one device with a minimum cadence of 150 TCA/TP per hour was required. Three bidders submitted offers, including Stago BNL and Siemens Healthcare Diagnostics. On 4 August 2015 the hospital sent an email to Stago stating, among other things: 'all tests will be carried out at the main site. The satellite sites will only do extreme emergencies'. Nothing in that email returned to the minimum cadences from the specifications. On 16 October 2015 the board of directors decided to award the contract to Siemens. Stago was notified on 9 November. On 18 December 2015 the contracting authority withdrew that decision and re-awarded to Siemens on the basis of a new analysis report dated 1 December 2015. It is that second award that Stago challenged. The analysis report of 1 December listed three substantial irregularities in Stago's offer, each individually sufficient to reject the offer: - For Etterbeek-Ixelles the Stago offer in fact contained two proposals (the offer itself and annex 10), amounting to a prohibited variant (art. 54 § 2 of the Royal Decree of 15/07/2011); - Neither of those two proposals reached the cadence required by the specifications: the devices offered reached at most 260 TCA/TP per hour instead of 300, affecting comparability with the other offers; - For the satellite sites Molière and Bracops, Stago offered devices with a cadence of 100 TCA/TP per hour, below the minimum cadence of 150 required by the specifications. In a separate paragraph the report noted that the Stago offer was about 25 % cheaper than the competition and attributed that difference to 'the choice of devices with a much lower cadence than those of the competitors'. Stago read that as a fourth ground (abnormally low price with no request to justify) and as a fifth ground, building a first plea around an alleged motivation defect with five 'irregularities'. Acting Chamber President Serge Bodart corrected that: the report contains three irregularity grounds, not five. The price observation appears in a separate section and is not used as an independent ground for rejection — the report expressly states that it is not the price that is considered abnormal, but the equipment that does not meet the requirements. A price justification under article 21 § 3 was therefore not required. For the main ground (capacity), the Council did not even need to decide whether there was a prohibited variant. Stago did not dispute that none of the devices offered — neither in Etterbeek-Ixelles (260 vs 300) nor in the satellites (100 vs 150) — met the cadences required by the specifications. The contracting authority defines the technical requirements; not every deviation is automatically substantial, but it is when the deviation affects comparability with the other (compliant) offers. That was the case here: Stago could not show that, despite the deviation, its offer remained comparable to the compliant offers without breaching the equal-treatment principle. The hospital's motivation was clear, precise and relevant. One substantial irregularity is enough to reject the offer — the other grounds did not need to be examined. In the second plea Stago argued the 4 August email: the hospital had 'trapped' it because only Stago received that information and relied on it to offer devices with a lower cadence. The Council dismissed that argument: the technical requirements — including the minimum cadences — are in the specifications. Nothing suggested they were unclear or ambiguous. The disputed email did not return to those cadences. Stago could therefore not claim to have read in that email a licence to depart from them. No breach of equal treatment. The plea was not serious. The extreme-urgency suspension was rejected.
Why does this matter?
Many bidders treat 'answers to questions' from the contracting authority as a kind of second specification — as if a reassuring email during the bidding period could soften the technical specs. This judgment says explicitly: no. The specifications outrank informal email communications, and the minimum capacities or dimensions written there in black and white are essential requirements; deviating from them makes your offer substantially irregular. For contracting authorities this is a strong precedent to build into a file when a rejected bidder tries to start a high-quality discussion about 'what we actually needed'. For bidders the practical lesson hurts: a cheaper offer with sub-spec equipment may look like aggressive pricing, but if the deviation affects comparability you are not a competitor — you are out.
The lesson
Always check every specification value with 'minimum' or 'at least' against what your offer states. If a single parameter falls below that minimum (even on a single device on a single site) you are in substantially-irregular territory — not because the authority is strict, but because your offer becomes mathematically incomparable with the compliant offers. Answers to your questions during the bidding period (emails, clarifications sent only to you) cannot 'lower' the specifications; at most they interpret them. If you really want to depart from a spec, ask for a formal rectification visible to all bidders — not a reassuring email.
Ask yourself
Go through your latest or in-preparation offer. Are there numerical minimum requirements in the specifications (cadence, capacity, power, weight, throughput, bandwidth, length)? Build a three-column table: spec requirement — what you offer — gap. Is any row in the red (below the minimum)? Then you risk rejection for substantial irregularity. Did you receive an email clarification suggesting that the requirement is flexible? Ask for a formal rectification — otherwise you are using a personal email as an argument against the specifications, and that is a battle you lose.
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 →