Diapers with 10 ml less absorption: Council of State suspends exclusion because CPAS failed to distinguish a technical specification from a 'minimum requirement'
The Council of State suspends the exclusion of Essity Belgium from a public contract for incontinence supplies, because the CPAS of Forest automatically treated minor absorption capacity deviations (240 ml instead of 250 ml, 3,400 ml instead of 3,500 ml) as substantive irregularities — without demonstrating these were genuine 'minimum requirements' and despite having tested and scored Essity's products higher than the competition.
What happened?
The CPAS of Forest published an open procedure in July 2025 for the supply of incontinence material and complementary products to the Val des Roses care home. The framework agreement covered four years with an estimated value of approximately €296,994 including VAT. Five companies submitted offers, including Essity Belgium — the market leader in hygiene products and parent company of brands such as Tena. Before submission, on 12 August 2025, Essity emailed the CPAS with a specific question: for four products, their range fell slightly below the values specified in the tender documents. Post 1: 240 ml instead of the 250 ml minimum. Post 9: 3,400 ml instead of 3,500 ml. Post 23: 2,650 ml instead of 3,000 ml. And a bib of 66 cm instead of 70 cm. The question was clear: 'Can we still submit, or are we excluded?' A CPAS employee responded the same day: 'You may include this information in your offer. Your offer will be evaluated according to the same criteria as other tenderers.' Essity submitted. But during evaluation, the CPAS declared Essity's offer null due to 'non-compliance with minimum requirements' on posts 1, 9 and 23 — the exact items Essity had asked about. The contract was awarded to Ontex for €296,994 over four years. Essity appealed to the Council of State. The Council ruled in two stages. First: the CPAS employee's email did not create legally binding legitimate expectations. It was not a decision by the competent body, and merely stated the offer would be evaluated 'on the same criteria' — not that technical requirements would be set aside. But then came the core finding: the CPAS failed to demonstrate that the absorption values in the specifications were genuine 'minimum requirements' within the meaning of Article 76 §1, paragraph 4, 3° of the Royal Decree of 18 April 2017. The mere use of the word 'minimum' next to a technical specification does not automatically make that specification a 'minimum requirement' whose non-compliance renders the offer substantively irregular. The products at posts 1, 9 and 23 were not even on the list of mandatory samples. And — crucially — the CPAS had in fact examined and scored Essity's samples against the award criteria, and Essity scored higher than competitors. The claim that offers could not be compared was therefore factually incorrect. The Council added that 'comparability' is not the same as 'identity': the fact that products are not identical to the specification does not mean they are incomparable. Finally, the Council rejected the argument that Essity's commitment would be uncertain: when an offer with non-substantive deviations is accepted, the tenderer commits to execute the contract with those acceptable deviations. That commitment is not uncertain. The suspension was ordered with immediate execution.
Why does this matter?
This ruling draws a sharp line between two concepts that contracting authorities often confuse: a technical specification containing the word 'minimum', and a genuine 'minimum requirement' in the legal sense of Article 76 of the Royal Decree of 18/04/2017. Only the second category automatically leads to a substantive irregularity and mandatory exclusion. For the first category, the contracting authority must specifically justify why the deviation is substantive — which is exactly what the CPAS failed to do here. The ruling also confirms that 'comparability' is the standard, not 'identity', and that a contracting authority cannot claim offers are incomparable when it has already compared and scored them in practice.
The lesson
Excluded because your product narrowly misses a technical specification? Check two things: (1) did the contracting authority explicitly designate that specification as a 'minimum requirement' or 'substantive' in the tender documents, or does it simply say 'minimum' next to a number? And (2) did the contracting authority nevertheless evaluate and compare your product with the competition? If the answer to (1) is no and to (2) is yes, your case is strong.
Ask yourself
Do you use the word 'minimum' in technical specifications in your tender documents? Be aware that this does not automatically constitute a 'minimum requirement' in the legal sense. If you want non-compliance to lead to exclusion, state it explicitly: 'This requirement is a minimum requirement within the meaning of Article 76 §1, paragraph 4, 3° of the Royal Decree of 18/04/2017. Non-compliance leads to the nullity of the offer.'
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 →