Council of State rejects annulment appeal against hockey field contract award in Ixelles – tender signature by authorised representative valid and fibre weight deviation not substantial
The Council of State rejected the annulment appeal by NV SportInfraBouw against the award of the contract for replacement of the synthetic surface and repair of the sprinkler system of the hockey field at Albert Demuyter stadium in Ixelles to NV Scheerlinck Sport, because the tender was validly signed by an authorised representative and the deviation in artificial turf fibre weight was not a substantial irregularity.
What happened?
The municipality of Ixelles tendered a public works contract through a simplified negotiated procedure with prior publication for the replacement of the synthetic surface and repair of the sprinkler system of the hockey field at Albert Demuyter stadium. Three tenders were submitted for lot 1, including Scheerlinck Sport at €273,252.00 and SportInfraBouw at €297,650.00. Price was the sole award criterion. The college of mayor and aldermen awarded lot 1 to Scheerlinck Sport on 22 June 2021. SportInfraBouw filed an annulment appeal on 14 September 2021. In a first ground, SportInfraBouw argued that Scheerlinck Sport's tender was not validly signed: the tender was submitted via e-Tendering by X.K., while the award report indicated that managing director A.M. was the signatory. The Council held that X.K.'s signature was valid: a special power of attorney from both delegated directors, authorising X.K. to submit and sign the tender, was included as a zip file with the tender. The reference to A.M. in the award report was a clerical error. In a second ground, SportInfraBouw argued that the fibre weight of the offered artificial turf (1,875 g/m² per the technical sheet) did not meet the specification requirement of 2,000 g/m². The Council held that the specifications had not explicitly labelled the technical requirements as 'minimum requirements' within the meaning of Article 76 §1(4)(3°) of the Royal Decree of 18 April 2017, giving the contracting authority assessment discretion. Moreover, a laboratory report from UGent-ERCAT showed an actual fibre weight of 1,992 g/m² — a deviation of less than one percent. The contracting authority had assessed this deviation as non-substantial, considering the proportionality principle. The Council also noted that SportInfraBouw's own tender contained deviations (an eight-filament fibre structure instead of the required monofilament and a fibre thickness of 140 µm instead of 150 µm), so the equality principle was not violated. The appeal was rejected.
Why does this matter?
This ruling clarifies two key aspects of tender regularity assessment. First, a tender submitted via e-Tendering can be validly signed by an authorised representative who is not a director, provided the power of attorney is included with the tender. Second, when specifications do not explicitly label technical requirements as 'minimum requirements' under Article 76 §1(4)(3°) of the 2017 Royal Decree, the contracting authority has assessment discretion to determine whether a deviation is substantial. A deviation of less than one percent on fibre weight was rightly assessed as non-substantial. The ruling also reminds that the equality principle requires the applicant to be in a comparable situation — an applicant whose own tender contains deviations cannot easily complain about the competitor's deviations.
The lesson
A tender can be validly submitted via e-Tendering by an authorised representative who is not a director, provided the power of attorney is included. In assessing tender regularity, the contracting authority has discretion when specifications do not explicitly label requirements as 'minimum requirements'. A deviation of less than one percent on a technical specification may then be assessed as non-substantial. An applicant challenging a competitor's deviations should ensure its own tender fully complies with all specifications.
Ask yourself
As a tenderer: have I correctly included the signatory's power of attorney when submitting via e-Tendering? And if I challenge a competitor for technical deviations: does my own tender fully comply with all specification requirements, or do I risk my own deviations undermining the appeal? As a contracting authority: when assessing technical deviations, have I verified whether the specifications label requirements as 'minimum requirements', and have I motivated my assessment discretion?
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 →