A 100 ml bottle of paracetamol is not 100 ml of storage space — Swisslog forgot the bottle, the air gap and the packaging, and lost a Charleroi hospital contract
The Council of State refuses to suspend the award of automated medication cabinets for CHU Charleroi because Swisslog Healthcare based its capacity figures on the volume of medication contents alone — not on the volume of bottles, vials and packaging — leaving its offer prima facie three drawers short on a single cabinet.
What happened?
In June 2022 the ISPPC (intercommunal hospital group of Charleroi) launched an open procedure for automated medication cabinets for the emergency, on-call and operating-theatre departments of Hôpital Civil Marie Curie and CHU André Vésale (tender 2022-0049). The tender documents (point IV.1.1) required the cabinets to physically contain all medicines listed in the Excel annex 'Annexe composition armoire', plus a reserve of 15% on top of the requested initial stock. Swisslog Healthcare submitted its offer on 2 September 2022. From December 2022 onwards, the contracting authority began questioning Swisslog's storage capacity, which was strikingly lower than the competitors'. In an email exchange running from 2 February to 13 April 2023, Swisslog explained: 168 compartments of 2.8 cm, an internal 'efficiency coefficient' to allow for empty space, the 15% margin and rounding up. When pressed for actual volumes, Swisslog confirmed: a 100 ml paracetamol bottle was treated as 100 ml; 30 sachets of 100 mg aspirin as 30 × 20 ml = 600 ml; and so on. The ISPPC ran its own arithmetic for two cabinets. For 'urgences HCMC': 12,508.09 cm² available against 22,587.50 cm² needed — 10,079.41 cm² short. For 'armoire de garde HCMC': 19,655.57 cm² against 56,224.72 cm² — 36,569.15 cm² short. On 24 May 2023 the ISPPC's executive board declared Swisslog's offer substantially irregular for failing the minimum requirements (Article 76, §1, 3° of the Royal Decree of 18 April 2017) and awarded the contract to another bidder. Swisslog applied to the Council of State in extreme urgency, arguing that its coefficient and the 15% margin were ample, that the ISPPC had calculated in cm² rather than cm³, and that the tender documents in any event lacked precise medication dimensions. The Council rejected every argument. One: the emails of 4, 11 and 13 April 2023 unambiguously show that Swisslog counted the contents of the medicines, not the bottle plus air gap plus packaging — exactly what the contested decision criticised. Two: the tables in which Swisslog now invoked its 'efficiency coefficient' (exhibits 17 and 18 to its application) had never been provided to ISPPC before award. Three: the 15% margin is a reserve required by the tender documents on top of the requested stock — it cannot serve as a buffer against a fundamental under-dimensioning. Four: the ISPPC had in fact incorporated a third dimension (10 cm drawer height) and, after recalculating with rectangular bases, still found a shortfall of three drawers (5,384.42 cm²) on top of the seven proposed by Swisslog for item 1 — and Swisslog did not contest that figure. Five: Swisslog's critique of the tender documents' lack of dimensional precision was raised for the first time at the hearing — too late and inadmissible, especially as Swisslog claimed to be a recognised professional in the sector. The application was rejected.
Why does this matter?
For bid managers in supply tenders this judgment shows that technical capacity calculations cannot be 'creative'. When a tender requires that a cabinet 'physically contains' all medicines, you must reckon with the actual footprint of bottles, vials and packaging — not with content volumes. For contracting authorities the judgment confirms that a strikingly different capacity from other bids is a valid trigger for thorough follow-up questions, and that a well-reasoned rejection for non-compliance with a minimum requirement — even in extreme urgency — will hold up if the calculations are documented and the shortfall is concretely quantified.
The lesson
If you submit a supply offer where physical dimensions or storage capacity is a minimum requirement, always count containers and packaging, not content volumes. If you use an internal 'efficiency coefficient' or safety margin to support your calculation, make sure that methodology is in the offer itself — not just in working documents you only attach to your application before the Council of State. What is not in the offer prima facie does not count. And if you find the tender documents unclear about dimensions, raise that question during the clarifications phase — not at the hearing.
Ask yourself
When you build a storage or capacity calculation for a bid: have you included the volume of containers, packaging and dead space, or only contents? And if you use an internal 'efficiency' coefficient, is that method explicitly documented in your offer, or only in internal working files?
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 →