A 'shelf life in months' isn't arithmetic — production and delivery may share the same calendar month
The Council of State refuses to suspend the award of 5 million surgical face masks to YNK Group, because the winning bidder credibly explained that its 60-month shelf life from delivery holds when production and delivery fall within the same month — even though Protect and Care chose to deduct production and transport time from its own offer.
What happened?
Belgium's federal Public Health service ran an EU-wide open procedure in early 2023 for the supply of 5,000,000 surgical face masks, delivered in three phases (1m within 6 weeks, 2m at 22-26 weeks, 2m at 48-52 weeks). Specification SR/2023/01/S applied two award criteria of equal weight (50% each): price and shelf life. Bidders had to state minimum remaining shelf life 'at the moment of each delivery', expressed in months, with a 20-month minimum to qualify. Scoring used a rule of three against the longest offered shelf life. Of 19 bids, four were ruled substantially irregular. YNK Group (Turkish production) offered 60 months remaining shelf life and scored 50/50 on price and 50/50 on shelf life — 100/100 total. Protect and Care (Chinese production) declared a 'net' shelf life that already deducted production and transport time, scored 44.89/50 on price and finished second. The contract went to YNK on 17 December 2023. Protect and Care challenged: 60 months from delivery is physically impossible from Turkey — at least ten days must be deducted for production and transport, so YNK should have offered 59 months. By not deducting, YNK supposedly gained a 'discriminatory advantage' and should have been ruled substantially irregular under article 76 of the 2017 Royal Decree. The Council, having read YNK's confidential offer, found that the packaging shows the same 60-month shelf life from production. YNK explained: if production starts at the beginning of a month, delivery still falls within the same month, so 60 months from production also covers 60 months from delivery. The Council notes that expressing shelf life in months is a 'usual technique', also used by Protect and Care's own manufacturer, and that a shelf life in months can de facto fluctuate between 60 months and 60 months plus around 30 days. Had the specifications asked for shelf life in absolute days, Protect and Care's argument would have held — but the specs explicitly asked for months. The fact that Protect and Care chose to declare a lower 'net' shelf life was its own choice. The single ground is not serious; application dismissed.
Why does this matter?
On supply contracts with shelf life as an award criterion, bidders often think they can corner a competitor on apparent arithmetic ('you promise 60 months from delivery, but your product is made in Turkey, so that can't add up'). This ruling teaches: as long as the specifications ask for shelf life in months and the winner can plausibly show that production and delivery fall within the same month, no irregularity stands. Bidders who 'play fair' and deduct lead times can't recoup that disadvantage via article 76 of the Royal Decree. For contracting authorities: if you genuinely want net shelf life, ask in absolute days or weeks, not months. For bidders: read the specs strictly and compete within their rules.
The lesson
When you write a shelf-life criterion, choose the unit deliberately: months give bidders a legitimate rounding margin of around 30 days; days do not. To kill the production-and-transport-time debate, your specifications must explicitly state that shelf life is calculated to the actual delivery date, with all manufacturing and logistics time deducted, ideally evidenced by batch certificates. Otherwise the rule is: 'in months' means 'it can de facto fluctuate within that month'.
Ask yourself
Does your specification ask for shelf life in months, weeks or days? If in months, does it explicitly require deducting production and transport time, or do you accept that a bidder may state the shelf life as it stands at production if production and delivery happen in the same month?
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 →