Rejection of suspension application against exclusion of drinking water fountain tender: offering only 2 kg CO2 cartridges for posts requiring 'approximately 4 kg' is substantially irregular — a contrario interpretation of deviation clause rejected
The Council of State rejected the suspension application by BV L. against the award by the City of Antwerp of the framework agreement for renting and maintaining drinking water fountains to NV C., because the exclusion of BV L.'s tender as substantially irregular was justified: she had offered only 2 kg CO2 cartridges for the posts requiring 'approximately 4 kg' based on her own safety considerations, and her a contrario interpretation of the deviation clause — meaning a 2 kg cartridge would satisfy the 4 kg requirement — was inconsistent with the specifications read as a whole.
What happened?
The City of Antwerp tendered a 72-month framework agreement for drinking water fountains through an open procedure with price (75 points) and sustainability (25 points) as award criteria. The specifications required two CO2 cartridge sizes per fountain type: approximately 2 kg (posts 11, 13, 15, 17) and approximately 4 kg (posts 12, 14, 16, 18). A tolerance clause stated that deviations of more than 100% from the requested volume would be non-compliant. BV L. offered only 2 kg cartridges for all posts, based on safety considerations regarding indoor CO2 storage. Her tender was declared substantially irregular. The Council rejected her a contrario argument that a 100% deviation tolerance means a 2 kg cartridge satisfies the ~4 kg requirement: the specifications read as a whole clearly required two different volumes. The purpose — sustainability and cost-efficiency for varying locations — was comprehensible. BV L.'s choice to offer only one volume was her own safety-based decision. Her second ground challenging the specifications as a prohibited product type reference (article 53 §4) and as an unjustified barrier (article 53 §2) also failed. The third ground on price comparability was rejected for lack of standing. The intervening party's intervention was dismissed for late payment of court fees.
Why does this matter?
This ruling illustrates that a deviation clause in technical specifications cannot be read a contrario to circumvent a fundamental requirement. When the specifications clearly require two product variants across multiple provisions, a tenderer cannot rely on a tolerance clause to offer only one variant. The ruling also confirms that specifying consumable volumes for different use scenarios does not constitute a prohibited product type reference under article 53 §4.
The lesson
As a tenderer: always read technical specifications in conjunction with the full tender documents. A tolerance clause allowing deviations up to a certain percentage permits variation within a requested category — not elimination of an entire category. When the specifications require two product variants, offer both. As a contracting authority: draft tolerance clauses carefully to prevent a contrario misuse.
Ask yourself
As a tenderer: have you offered all requested product variants? Have you interpreted a tolerance clause too broadly to avoid an entire category? As a contracting authority: are your tolerance clauses clear enough to prevent a contrario misuse?
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 →