Suspension request for calendering machines rejected: applicant fails to prove non-conformity with air flow funnel specification
The Council of State rejects the suspension request under extreme urgency against the award of a framework agreement for calendering machines to Kannegiesser France, as Jensen Group fails to demonstrate that the selected tenderer's offer does not include the air flow funnel required by the technical specifications for the feeders of lines 2 and 3.
What happened?
Brussels' Public Centre for Social Welfare (OCMW) launched an open procedure for a framework agreement for the supply of calendering machines (industrial ironing machines with rollers for linen) for its laundry facility processing 80 tonnes of laundry per week. The contract covered the purchase, installation, commissioning and training for three calender lines. Two tenderers submitted offers: NV Jensen Group and SAS Kannegiesser France. The four award criteria were price (50 points), output (20 points), quality (20 points) and reduction of environmental impact (10 points). After evaluation, Jensen scored 93.32 points and Kannegiesser 97.41 points. The welfare council awarded the contract on 20 December 2023 to Kannegiesser. Jensen Group filed a suspension application under extreme urgency. In its sole plea, Jensen argued that Kannegiesser's feeders for lines 2 and 3 lacked the air flow funnel for de-creasing linen required as a minimum technical specification. According to Jensen, Kannegiesser offered a feeder (type 'ErgoSpeed EMH') that transfers linen directly to the calender without an intermediate space for air extraction. The Council found that it does not itself assess the technical capabilities of proposed solutions — that is for the contracting authority. From Kannegiesser's offer, the hearing explanations and the OCMW's confirmation (including a site visit), it appeared prima facie that the offered feeder did include an air flow funnel or at least an empty space or funnel. That the specifications required mechanical air extraction using fans was not established. Jensen failed to prove non-conformity or that the absence of a fan-based extraction system constituted a substantial irregularity. The factual premise of the plea — that Kannegiesser offered feeders without an air flow funnel — appeared to lack factual basis. The sole plea was not serious and the application was rejected.
Why does this matter?
This ruling illustrates the Council of State's restraint in assessing the technical conformity of tenders. The Council does not substitute itself for the contracting authority to judge whether a technical solution meets the specifications — that assessment belongs to the administration. The applicant bears the burden of proof: they must demonstrate both that the competitor's offer is non-conforming and that the deviation is substantial. A party's own interpretation of what a technical specification requires is insufficient if that interpretation does not follow from the specifications themselves.
The lesson
To have a competitor excluded for non-compliance with technical specifications, you must clear two hurdles: prove that the proposed solution does not meet what the specifications require, and prove that the deviation is substantial. The Council of State does not itself assess technical conformity but reviews whether the authority proceeded from correct facts and reached its conclusion within the bounds of reasonableness. Therefore, draft your technical specifications unambiguously: if you require a specific operating principle (such as mechanical air extraction), prescribe it explicitly. Vague or functional descriptions leave room for alternative solutions.
Ask yourself
As contracting authority: when assessing technical conformity, have I verified myself whether the proposed solution meets the specifications and reasoned this accordingly? As a tenderer challenging a competitor: can I concretely prove that the competitor fails to meet a minimum technical requirement and that this deviation is substantial? Or does my challenge rest on my own broader interpretation of what the specifications require?
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 →