Rewarding a bid for being 'better than the specifications require' is discrimination
The Council of State annuls a €4.2 million award for the construction of the Parc des Colombophiles in Anderlecht because Brussels Environment awarded the winning bid higher scores precisely because it deviated from a technical requirement in the specifications.
What happened?
Brussels Environment tendered a works contract for the redevelopment of the parc des colombophiles in Anderlecht. Lot 1 (landscaping) included under item 204 a detailed technical description of a 'climbing rock': 'It is artificial and made of one or more block(s) of resin concrete with an organic and stone-like aesthetic of natural colour'. Two cumulative requirements: artificial AND resin concrete with a natural appearance. Free variants were expressly prohibited by article I.13 of the specifications. Yet Les Entreprises Melin offered natural stone instead of resin concrete — a deviation from the specifications. Brussels Environment found the offer regular AND rewarded it in the evaluation report with the words: 'By proposing a block of natural stone, we believe the company is making an offer of higher quality than the specifications require'. For the first sub-criterion (design and gauge, worth 2.5 points) Melin got the full amount, while Krinkels — who DID offer resin concrete as requested — got 0. For sub-criterion 3 (guarantees), the report stated for both offers the same fact ('no information on maintenance'), but Melin still got 1 point 'given the material' while Krinkels got 0. The final gap: 1.68 points. The contract went to Melin for €3,482,523.85 (excl. VAT) — €4,213,853.86 incl. VAT. The Council of State had already ordered suspension on 31 March 2023 (judgment 256.185). Since none of the parties requested continuation, the 27 September 2023 judgment annuls the award decision definitively under the abbreviated procedure (article 17, §6 of the Council of State Act). The legal reasoning: a contracting authority cannot qualify a deviation from its own specifications as a 'qualitatively better offer'. That violates equality, non-discrimination, transparency and the principle patere legem quam ipse fecisti — a contracting authority is bound by its own rules.
Why does this matter?
For bid managers this is top-quality ammunition: if the winner of a contract received points for features deviating from what the specifications prescribe, you have a strong ground for annulment — regardless of how small the points gap (here 1.68 out of 100). For contracting authorities the message is: write your technical requirements as obligations and you are bound by them. If you want to be open to 'better' alternatives, expressly allow free variants (and ensure the specification permits this). Two cumulative requirements are not a wishlist: 'artificial AND made of resin concrete' does not mean 'artificial OR optionally natural stone if it looks nicer'.
The lesson
If as a bid manager you notice that the winning offer was scored on features deviating from the specifications — even when presented as 'better' — you have an annulment ground based on patere legem quam ipse fecisti and the equality principle. For contracting authorities: a 'surprisingly attractive' offer from a bidder who does not adhere to the specs cannot be validated as 'higher quality' — you must judge it on regularity. If you want flexibility, allow free variants in the specifications.
Ask yourself
Read in the evaluation report the literal motivation of the winner's scores. Does a phrase like 'better than required', 'qualitatively superior to what the specifications provide' or 'an improvement over the specs' appear? That is a red flag — request access to the file immediately and check 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 →