A specification you didn't label 'essential'? That doesn't give you a free pass to ignore it at award time
The Council of State suspended the award of a towing contract because the police zone knew the winning towing service did not comply with the spec requiring premises inside the zone, and never motivated in the award decision why that requirement had suddenly become non-essential.
What happened?
Police zone Zuiderkempen (Herselt, Hulshout, Westerlo) tendered a three-year towing contract via a negotiated procedure without publication, estimated at 50,000 euros incl. VAT. Three incumbents were invited: Van De Zande (Aarschot), Kisser (Westerlo) and Laeremans-Knaeps. After a price-clarification round, the police council issued a revised specification on 22 June 2016 with award criteria split 50/50 between price and response time. The technical conditions included a clause: if the towing premises are outside the zone, the bidder must guarantee a secure storage place centrally located within the zone. The award decision of 26 August 2016 went to Van De Zande, who is based in Aarschot — outside the zone — with a subcontractor in Geel — also outside the zone. The police zone never disputed this, but argued that the storage clause was 'not essential' compared to the 24-hour service and 25-minute response time. The Council of State (12th chamber) rejected this: a clause not labelled essential isn't automatically irrelevant. The functional test depends on the nature of the contract. Inviting a bidder you already know cannot meet your own spec, and then awarding without ever explaining in the award decision why the deviation was acceptable, breaches the duty of due care. Suspension granted.
Why does this matter?
Many contracting authorities draft specs with a small set of 'essential' requirements and a long tail of technical conditions they treat as soft. This case says: not so fast. A requirement you didn't label essential is still a requirement — and if it functionally looks essential (given what the contract is about), you must address it in the award decision. For bidders: a competitor's visible deviation from a technical clause is a serious ground for suspension, even when the clause isn't tagged essential.
The lesson
If you are a contracting authority and you invite a bidder you already know cannot meet a clause in your own spec, you must explicitly state in the award assessment whether that clause is essential and how you treat the deviation. Silence or 'we didn't intend that to be essential' won't survive judicial review. Write the reasoning down in the award report.
Ask yourself
Does the winning offer visibly deviate from a technical specification? Look in the award report or decision for (a) an explicit assessment whether the clause is essential and (b) reasoning on why the deviation is acceptable. Both missing? You have a serious ground.
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 →