Annulment of non-selection of Anti-Chute for covid face mask framework agreement (Defense) — factually incorrect ground ('no figures and no references provided' when the offer contained both) — selection criteria limited to terms of the specifications
The Council of State annulled the Defense Minister's decision not to select SRL Anti-Chute for the framework agreement for reusable cloth face masks (covid-19), the non-selection ground ('no figures and no references') being factually incorrect — the declaration attached to the offer did mention a delivery of 250,000 masks with the recipient's name and address, as required by the specifications — the contracting authority could not require details (date, proof of delivery) not specified in the tender documents.
What happened?
During the covid-19 pandemic in April 2020, the Defense Ministry was tasked with procuring reusable face masks via negotiated procedure without prior publication. After market consultation with 190 textile operators, 41 were invited to tender. The specifications required a declaration attesting delivery of at least 250,000 reusable cloth masks with the recipient's name and address. Anti-Chute submitted an offer with a declaration referencing delivery of 250,000 masks to Mother Trucker & Co (USA) with full address. The Minister rejected Anti-Chute's offer stating 'no figures and no references provided', which was factually incorrect. The Council found the ground erroneous in fact and the formal motivation inadequate. Defense's arguments during proceedings (missing date, exact number, proof of delivery) were not required by the specifications and could not be invoked retrospectively. Article 68 §4(1)(b) of the Royal Decree binds the contracting authority in choosing criteria, not the operators. The decision was annulled.
Why does this matter?
This ruling, in the emblematic context of the covid-19 mask procurement, illustrates two fundamental principles: the contracting authority is bound by its own specifications and cannot exclude a tenderer who met the stated requirements by invoking unstated requirements; and the formal motivation must be factually accurate.
The lesson
As a contracting authority: formulate selection criteria precisely and specify required evidence in the tender documents. You cannot reject a tenderer by invoking requirements not stated in your own specifications. Verify that your non-selection motivation matches the facts. As a tenderer: satisfy the requirements as formulated in the specifications. If your declaration meets the stated criteria, the authority cannot fault you for omissions it didn't require.
Ask yourself
As a contracting authority: are your selection criteria and evidence requirements formulated precisely enough? Did you reject a tenderer based on unstated requirements? Does your non-selection motivation match the facts? As a tenderer: does your declaration meet the exact terms of the specifications? Is the non-selection ground communicated to you factually incorrect?
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 →