Four paragraphs of motivation that all repeat 'it's a different molecule' is not motivation
The Council of State suspends a €138 million framework agreement for cancer drugs at CHU Liège because the contracting authority rejected TEVA's equivalent offer (lipegfilgrastim instead of pegfilgrastim) without explaining why two molecules that serve the same therapeutic purpose are not equivalent in this case.
What happened?
In 2023, CHU de Liège tendered a four-year framework agreement for cancer medication — 31 lots, a joint purchasing centre for six hospitals in the Liège region, valued at over €138 million. Lot 26 covered Pegfilgrastim 6mg injectable, a growth factor that stimulates white blood cell production after chemotherapy. The specification used the international common name (DCI) and ATC code 'L03AA13' — specific to pegfilgrastim. TEVA Pharma Belgium submitted an offer for lot 26 with its Lonquex® product based on lipegfilgrastim — a related molecule with ATC code 'L03AA14'. TEVA included scientific package leaflet, a non-inferiority study, an EMA report and references to numerous Belgian and European hospitals that had previously procured both molecules in competition. TEVA had even asked the CHU before the offer phase whether Lonquex could be offered. The CHU's reply was one line: 'No. We confirm we want Pegfilgrastim 6mg/x ml.' On 20 September 2023, the CHU decided not to select TEVA and to declare its offer substantially irregular, awarding the lot to Accord Healthcare and Amgen for €660,050. Its reasoning was lengthy but, as the Council of State observed, 'beneath an apparently very long motivation' boiled down to four restatements of one fact: the molecules differ. The Council noted that's exactly the question, not the answer — equivalence by definition assumes two different processes leading to a comparable result. The CHU never addressed the result. The Council ruled that article 53 of the public procurement act applied (a contracting authority cannot escape technical specification rules by hiding inside the definition of the contract object) and that article 5, 8° of the recourse act was breached: a decision rejecting an offer for non-equivalence must contain the actual reasons for non-equivalence. Prior exchanges with TEVA created a heightened duty to motivate. Suspension was granted with immediate effect.
Why does this matter?
Two patterns that appear in nearly every tender procedure converge here. First: contracting authorities often define their needs through a norm or code (a brand name, an ISO standard, an ATC code, a specific protocol). Legally, 'or equivalent' must accompany such references and alternatives must be seriously assessed. In practice this is forgotten or worked around by labelling the reference as 'the object of the contract'. This judgment closes that loophole: whether you call it 'object' or 'technical specification', article 53 applies. Second: bidders often receive rejection letters with many paragraphs that look thorough but repeat the same point. The Council of State sees through this when the rejection says 'it is different' about an offer that argues precisely that 'different' here means 'equivalent'.
The lesson
As a bidder: when offering an equivalent, include the full equivalence dossier in the offer itself — package leaflet, comparative studies, list of contracting authorities that previously procured both products together, EMA or national medicines agency reports if available. Don't supply equivalence evidence after opening — article 53, §6 requires the proof to be in the offer. As a contracting authority: when rejecting an offer as non-equivalent, address each argument the bidder raised and explain specifically why it doesn't suffice. 'The molecules are different' is not a reason — it's the starting point of the equivalence question.
Ask yourself
Take your draft rejection decision. Strike out every sentence that essentially says 'it's a different product/method/molecule'. What's left? If less than half a page — or nothing — you don't have motivation, you have a conclusion without grounds.
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 →