A leftover ‘5’ in the tender documents and a medical trick question: Octapharma loses the fibrinogen lot of the Verviers hospital
The Council of State refuses, under extreme urgency, to suspend the award of the fibrinogen lot (854,250 euros for both lots together) to CSL Behring: the contradictory scoring of sub-criterion 2.2 in the successive versions of the tender documents was a mere clerical error that could not mislead a reasonable bidder, and the much-criticised sub-criterion on the quantity to administer in an emergency did relate to the subject matter of the contract — Octapharma, which scored 0 out of 10 on that sub-criterion, moreover pays the hospital a procedural indemnity of 770 euros.
What happened?
On 30 May 2022 the Centre hospitalier régional de Verviers launched an open procedure for the supply of prothrombin complex concentrate (lot 1) and human fibrinogen (lot 2), together estimated at 854,250 euros excluding VAT. The first tender document contained a sloppy detail: next to sub-criterion 2.2 ‘ease of use for administration’ stood 10 points, but the explanatory section and the calculation formula said 5. A second version of 6 June 2022 corrected the formula to 10 but left one ‘5’ in the explanatory section. In the evaluation report of 18 August 2022, 10 appeared everywhere. Sub-criterion 2.2 asked bidders what quantity of product (in milligrams) is recommended ‘in emergency situations where the fibrinogen level is not known, for a patient of 70 kg’. Octapharma answered that such a general recommendation was legally impossible because its SmPC (for Fibryga) distinguishes between congenital and acquired fibrinogen deficiency, and received 0 out of 10; CAF-DCF received 10 and CSL Behring 7.14. The lot went to CSL Behring on 6 September 2022 with 90.47/100, against 88.35 for Octapharma — which, incidentally, won lot 1 itself. Before the Council of State, Octapharma argued that the shifting scores had distorted the comparison of tenders, and that the sub-criterion was unlawful: a request for medical advice rather than an award criterion, scientifically irrelevant (91% of deficiencies are acquired), financially pointless (the INAMI reimburses everything) and discriminatory. The Council dismissed both pleas. The leftover ‘5’ was an obvious clerical error: the total of 100 points, the 20 points for the quality criterion and the ‘10*’ formula made clear before submission that scoring was out of 10 — the rules of the game never changed. And the sub-criterion did relate to the subject matter of the contract: the hospital wants to know in advance how much product to administer in a massive haemorrhage with no time for tests, a situation the INAMI regulations themselves mention; moreover, the INAMI reimburses at most 2 x 3 grams, so any surplus falls on the hospital. That Octapharma alone did not have the answer in its SmPC does not make the criterion discriminatory. The accusation that CSL Behring had ‘lied’ came only at the hearing and was out of time. The action was dismissed; Octapharma bears the roll fee (200 euros), the contribution (24 euros) and the procedural indemnity of 770 euros.
Why does this matter?
The judgment draws two lines sharply. First: not every error in tender documents violates the intangibility of award criteria. The Council looks at what a normally diligent bidder could deduce from the documents as a whole — if the total, the sub-scores and the formula allow only one reading, a leftover wrong figure is a clerical error, not a change of the rules after submission. Whoever builds a case on such an inconsistency must show it could genuinely affect the preparation of the tender. Second: the contracting authority enjoys a broad margin of discretion in setting its award criteria, and the Council's review is marginal. A sub-criterion probing the recommended dose in a concrete emergency scenario is not a disguised request for medical advice but a legitimate quality question, certainly where the scenario appears in the INAMI regulations and the reimbursement ceiling of 2 x 3 grams demonstrates the financial relevance of a lower dose. The judgment also contains two procedural warnings that shaped the outcome: the challenge to the implicit refusal to award to Octapharma was inadmissible because it did not show the contract had to go to it, and the claim that the winner had answered outside its marketing authorisation failed as out of time because it was first raised at the hearing.
The lesson
For bidders: read sloppy tender documents the way the Council reads them — as a whole. One contradictory figure is not enough; in case of real doubt, ask for clarification before submission, because afterwards the most coherent reading prevails. Put every argument in the application itself: what you raise only at the hearing is out of time, and whoever also wants the award for himself must show concretely that the contract had to go to him but for the errors. If your product cannot meet a requested specification, do not merely attack the criterion — show why it is unrelated to the subject matter of the contract; here that foundered on the INAMI regulations, which describe the emergency scenario themselves. For contracting authorities: this case was won, but it shows how much litigation risk one leftover figure creates. Reread every section after each amendment, and make sure you can document the clinical and financial relevance of each sub-criterion — it is that substantiation (the INAMI ceiling of 2 x 3 grams, the emergency situation from the reimbursement rules) that saved the hospital here.
Ask yourself
When tender documents contradict themselves, do you first check whether the whole — total score, sub-scores, formulas — nevertheless allows only one reasonable reading, before building a plea on it? Are all your arguments in the application itself, and do you show concretely that the contract had to go to you if you also challenge the non-award? As a contracting authority, can you document for each sub-criterion its link with the subject matter of the contract and its practical or financial relevance? And do you reread all sections after every correction of your tender documents, so that no old figures linger?
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 →