Photovoltaic panels: suspension for inaccurate irregularity and presumed financial capacity
The Council suspends the decision to award a photovoltaic panel contract to Cool Sun Energy and to exclude Klinkenberg's offer as substantially irregular, since the grounds for irregularity are inaccurate and the awardee's financial capacity was unduly presumed.
What happened?
The Province of Walloon Brabant launched a supply contract for photovoltaic panel installation on Campus BW buildings. Four tenderers submitted offers: Cool Sun Energy (awardee), Klinkenberg, Dauvister and Monnaie. Klinkenberg's offer was declared substantially irregular for not including a price/kWc ratio table required by the first award criterion (55 out of 100 points). The Council found all three grounds of the challenged decision prima facie inadmissible. First, the absence of the table did not prevent evaluation: all necessary information was present in Klinkenberg's offer and could be derived through simple calculation — moreover, the awardee's offer also lacked a fully compliant table. Second, the table format could not be qualified as a 'minimum requirement' since the procurement documents did not identify it as such and its absence affected neither equal treatment nor comparability of offers. Third, regarding Cool Sun Energy's selection (incorporated August 2022, no approved annual accounts), the Council found the contracting authority misapplied Article 67, §1, para 2, 2° of the Royal Decree of 18 April 2017. This provision concerns only the means of proof of financial capacity, not an exemption from the qualitative selection criterion itself. Cool Sun Energy submitted no documents establishing its financial capacity, and the province simply 'presumed' it — contrary to qualitative selection rules.
Why does this matter?
This ruling clarifies a fundamental distinction often misunderstood: Article 67, §1, para 2, 2° of the 2017 Royal Decree does not exempt a tenderer from meeting the qualitative selection criterion — it only adapts the means of proof when information is unavailable. A contracting authority can never 'presume' a tenderer's financial capacity; it must always concretely verify that minimum requirements are met, if necessary on the basis of alternative documents.
The lesson
You cannot presume what you must verify. If a tenderer cannot produce the usual proof of financial capacity, it must provide alternatives — and the contracting authority must concretely examine them. Similarly, the presentation format of an offer can only be qualified as substantial if it truly prevents comparison.
Ask yourself
Have I concretely verified each tenderer's financial capacity, including recently created companies? Have I distinguished between the selection criterion and its means of proof? Are my grounds for substantial irregularity accurate, and does the irregularity truly prevent comparison of offers?
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 →