A natural-stone boulder where the spec required 'resin concrete': Brussels-Environment punished the compliant bidder, rewarded the deviant — and lost the contract
The Council of State suspends the award of a €4.2 million park redevelopment in Anderlecht because the contracting authority gave the winning bidder bonus points for a natural-stone climbing rock when the specifications explicitly required 'resin concrete' — and so pushed the rule-compliant competitor into second place by 1.68 points.
What happened?
Brussels-Environment runs an open procedure for the redevelopment of the Parc des Colombophiles in Anderlecht, lot 1 (landscape works) worth nearly €4.2 million incl. VAT. Award criteria: price 70 points, quality of climbing rock and skate ramp proposals 10 points, quality of play structures 20 points. The specification for the climbing rock (item 204) is clear: 'It is artificial and made of one or more blocks of resin concrete with an organic, stone-like aesthetic in a natural colour. It represents a real block of natural stone from our regions: porphyry, sandstone, limestone…' The spec explicitly forbids free variants. Two bidders: SA Krinkels and SA Les Entreprises Melin. Krinkels offers catalogue equipment in polystyrene or recycled plastic — itself not resin concrete, but the design team accepts that the dimensions correspond to the spec. Melin proposes something different: a block of REAL NATURAL STONE, sculpted on site by a stone carver. The evaluation report is enthusiastic about Melin: 'By proposing a block of natural stone, we believe the company is making an offer of quality superior to the expectations of the spec' — awarding full marks for sub-criterion 1 (design), full for sub-criterion 2 (potential), and full for sub-criterion 3 (guarantees), even though Melin provides no maintenance information. Krinkels gets 0 points on the first sub-criterion and on the third — even though it too provided no maintenance information. Final standings: Krinkels 92.75 / Melin 94.43 — a 1.68-point gap. Krinkels appeals on extreme urgency. Brussels-Environment and Melin defend with a strikingly creative reading: the spec only meant 'resin concrete' as a minimum quality; natural stone is an 'improvement' under article 78 of the 17 April 2017 RD; the words 'monolith', 'rock' and 'natural stone' show the real intention was real stone. Krinkels would also lack interest because its own offer doesn't comply either. The Council dismisses all of these. Admissibility: the plea is not that Melin's offer should have been excluded as irregular, but that it could not be rewarded for features the spec did not allow — a question independent of regularity. On the merits: the spec requires CUMULATIVELY that the rock (i) be artificial AND (ii) look like real natural stone. There is no question of a single aesthetic requirement met differently depending on whether natural stone is used. By giving Melin extra points for a choice the spec did not permit — or by treating it as an 'improvement' when no such freedom was offered — Brussels-Environment favoured Melin in breach of equality, non-discrimination, the spec and patere legem quam ipse fecisti. Suspension granted.
Why does this matter?
Contracting authorities often think they may reward 'something better' — a real stone block where the spec asks for resin concrete, a shorter delivery time than required, a longer warranty than the minimum. This judgment draws a hard line: an 'improvement' can earn points only when the spec explicitly leaves the choice open. Once a requirement is cumulative and clearly drafted, an offer that deviates from it cannot score better than one that respects it — otherwise you punish the rule-compliant bidder and undermine the level playing field. And this applies even when the deviating bidder is more expensive and the gap is 'only' 1.68 points.
The lesson
If as a contracting authority you draft a technical requirement cumulatively ('artificial AND with the appearance of natural stone', 'class X AND category Y', '24-hour SLA AND Dutch-language helpdesk'), do not reward an offer that meets only one of the two. That is not a 'plus', it is a rewriting of the spec after the bid date. As a bidder, if you find the winner received bonus points for a choice the spec did not leave open — while you got 0 points on a sub-criterion where you were objectively no worse — you have a serious plea, even with a small point gap. It does not matter to the Council whether your own offer was strictly compliant: the plea concerns the evaluation, not your regularity.
Ask yourself
Open the evaluation report of a contract you lost and look for these phrases in the commentary on the winner: 'quality superior to the expectations of the spec', 'improvement beyond the minimum', 'the bidder offers more than asked'. Then go to the spec and check: did that specific clause leave room for choice? Was the requirement framed as a 'minimum' or as a precise technical characteristic? If the requirement was cumulative and closed — a strong signal that the 'plus' element should not have been rewarded. Then calculate: would correcting those points reverse your ranking? If yes, you have a case for urgency proceedings.
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 →