A ‘minimum requirement’ that turns out not to be one: the Belgian Finance Ministry could not exclude Shimadzu because its quadrupole does not heat to 200 °C
The Belgian Federal Public Service Finance first awarded the supply of Euromarker detectors to Shimadzu Benelux, withdrew that award after a complaint by competitor Agilent, and then declared Shimadzu’s tender substantially irregular because its quadrupole cannot be heated to 200 °C; the Council of State suspended that decision under extreme urgency, because the authority had itself acknowledged that Shimadzu achieves the requirement’s underlying purpose — an inert quadrupole — just as well with a different technique, and a tender may not then be rejected on the mere letter of the specifications.
What happened?
The FPS Finance tendered the supply of Euromarker detectors: gas chromatographs with a mass spectrometer (GCxGC-MS) used to check whether mineral oil benefiting from an excise exemption is being misused. Under heading E.2.1 ‘Minimum requirements’, specification document S&L/DA/2022/004 required, among other things, that the temperature of the quadrupole — the instrument that selects ions by mass — be adjustable to at least 200 °C. Three companies tendered. The evaluation of 23 August 2022 identified Shimadzu Benelux as the most economically advantageous tenderer, and on 19 September 2022 the chair of the Management Committee awarded it the contract. On 28 September 2022 competitor Agilent Technologies Belgium objected: Shimadzu’s quadrupole does not heat to 200 °C, so its tender fails the minimum requirement. On 3 October 2022 the FPS still replied to Agilent that the requirement only serves the quadrupole’s inertness — preventing components from ‘sticking’ to it — and that other suppliers achieve that inertness with other techniques, ‘with the same result’. Nevertheless, on 6 October 2022 the FPS withdrew the award: the evaluation’s purposive interpretation allegedly ran ‘against the literal text of the specifications’. A new evaluation report of 21 October 2022 declared Shimadzu’s tender substantially irregular under article 76 of the Royal Decree of 18 April 2017, and on 10 November 2022 the contract was awarded to Agilent. Shimadzu sought suspension under extreme urgency on 7 December 2022. The Council of State found that the FPS itself — in its reply to Agilent, in the withdrawal decision and implicitly in the first award — had acknowledged that Shimadzu’s instrument achieves the required inertness without heating. It is then hard to accept that heatability to 200 °C is a genuine minimum requirement that every tenderer must meet regardless. The FPS could have examined whether, with proper reasons and respect for equal treatment, it could set the requirement aside, or it could have relaunched the procedure without it; it did neither and simply rejected the tender on a literal reading. That sits uneasily with the duty to state reasons and the principle of reasonableness (article 4 of the 2016 Public Procurement Act). The plea was found serious and the Council suspended the decision under extreme urgency; costs, including the procedural indemnity, were reserved.
Why does this matter?
This judgment touches a question that constantly arises in technical contracts: what is a minimum requirement actually worth? Authorities like to put lists of ‘minimum requirements’ in their specifications, and article 76 of the placement decree turns non-compliance into a substantial irregularity voiding the tender. But the Council of State looks through the label: a technical specification only deserves to be called a minimum requirement if it is genuinely essential to meeting the authority’s needs. Once the authority itself admits that another process delivers the same result — here in black and white in its reply to Agilent and in the withdrawal decision — it can no longer hide behind the letter of its own specifications to exclude a tender that undisputedly meets its needs. The case’s dynamics are also striking: the FPS first defended the purposive reading itself, and only reversed course after the rejected competitor threatened it into withdrawal. The Council offers authorities two lawful ways out: set the requirement aside with proper reasons and respect for equality, or redo the procedure without it. Choosing the easy path — the literal reading — instead risks a suspension under extreme urgency, with all the delay that entails.
The lesson
For tenderers: if you offer a technical alternative that achieves the purpose of a specification by another route, document it explicitly in your tender, as Shimadzu did in its response form. If the authority acknowledges anywhere — in correspondence, an evaluation report, an earlier award — that your solution is equivalent, that is gold in an extreme-urgency procedure: the Council holds the authority to its own words. For authorities: put nothing under the heading ‘minimum requirements’ that is not genuinely essential, and where possible describe requirements functionally (the result to be achieved) rather than as one specific process. If, after opening the tenders, you find that a tenderer achieves the intended result differently, choose deliberately: give reasons for setting the requirement aside while respecting equality, or start again without it — but do not reject the tender on the letter after you have yourself acknowledged equivalence. And do not simply yield to a competitor’s complaint without your own analysis: withdrawing a correct decision can cost you more than the complaint itself.
Ask yourself
Do you know, as a tenderer, that a requirement under the heading ‘minimum requirements’ is not automatically a genuine minimum requirement, and that what counts is whether it is essential? Do you explicitly document in your tender why your alternative technique achieves the requirement’s purpose? Do you keep correspondence in which the authority acknowledges the equivalence of your solution? And as an authority: does your list of minimum requirements contain only what is genuinely essential to your needs, or also process requirements that favour one supplier? If a tender achieves the intended result by another route, do you examine and reason that through before ruling on regularity — or do you fall back on the letter of the specifications?
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 →