Demoing 'the wrong product' at your clarification session is not an innocent slip — it cost Roba Pharma 22 points and the contract
The Council of State rejects Roba Pharma's request for suspension because the contracting hospital plausibly assessed its offer for two lots of medicine cabinets worth €2.6 million as poor — partly because Roba Pharma spent its clarification session demonstrating a product that wasn't even in the offer.
What happened?
The East-Limburg Hospital launches a four-lot supply contract for medicine-distribution equipment via a competitive procedure with negotiation. Five candidates are selected in July 2021, including Roba Pharma NL (Omnicell distributor). The award criteria are: price (7-year TCO) 35 points, quality/safety/usability 30, project plan 20, after-sales service 15. In April 2022 each bidder gets an online clarification session. After a first round in which Roba Pharma's offer is declared substantially irregular for under-dimensioning, a regularised version is filed at the same price. On 16 January 2023 the contract is awarded to Hospital Logistics (lot 3) and Touchpoint Medical (lot 4). After a first court action the hospital withdraws the decision and runs a new evaluation on 13 February 2023 — this time accepting Roba Pharma's offer as regular but heavily penalising it on quality criteria: 12/30 for quality, 6/20 for project plan, 5/15 for after-sales. Final scores: lot 3 — Hospital Logistics 80.2, Roba Pharma 58 (gap of 22.2); lot 4 — Touchpoint 79.5, Roba Pharma 64. The hospital's criticism is concrete: Roba Pharma spent most of the clarification session presenting a 'new concept (Deenova) on closed-loop drug traceability' — equipment that is not part of the offer — even though it had been explicitly asked to spend little time on this. Other faults: under-dimensioned cabinets (290 cells proposed where its own calculation gives 480), too few flexlocks for fridges, no offer for the GHB and MGPS departments, no concrete project plan tailored to the contract, and a one-year template maintenance contract with tacit renewal — when the specifications require 7 years (2 years warranty + 5 years maintenance). The Council reviews marginally and notes that the contested findings 'appear at first sight supported by the confidential offers' it has been able to consult. It accepts two small concessions — spelling mistakes are not in themselves a relevant professionalism criterion, and the comment about the 3% maintenance price actually concerns the price criterion, not quality. But Roba Pharma fails to make 'concretely plausible' that correcting these would close the overall point gap.
Why does this matter?
Many bidders treat clarification sessions as commercial pitches — a chance to show the breadth of the portfolio, impress with the latest innovation. This judgment shows it is something fundamentally different: the clarification is part of the award process and you are scored on what you actually offered. Bidders who waste time on something not in the offer get no second chance. The case also illustrates how strictly the Council reviews urgency proceedings against qualitative assessments: you must not only show a small finding is wrong, you must show that correcting it reverses your ranking. With a 22-point gap, that is an unreachable bar.
The lesson
When invited to a clarification session, bring ONE thing: the solution literally in your offer. No product roadmaps, no 'innovative concepts' from other business units, no 'what we could also offer'. Test every Q&A item and specification clause against your offer beforehand: can you concretely demonstrate that picking speed, that parallel picking, that software integration with references? If not, fix the offer, not the demo. And submitting a 'standard one-year maintenance contract' for a contract that requires 7 years of maintenance is not a formality slip — it tells the buyer you didn't read the brief.
Ask yourself
Look at your current offer and ask yourself three questions: (1) Is my project plan a document tailored to THIS contract, or is it 80% copy-paste from a previous offer? (2) Does the duration of the maintenance contract I attached match the duration the specs require — or am I sending a template with a different duration? (3) If I had to give the clarification session using only my offer documents as a script, can I substantiate every award criterion point by point — without straying into products, services or innovations that are not in the offer? A 'no' to any of these predicts no win.
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 →