Rejection of extreme urgency suspension against non-award of innovation partnership for PFAS purification Port of Antwerp-Bruges — deviation from indicative flow rates and pilot duration may be assessed as negative point — contracting entity's assessment margin for qualitative criteria respected
The Council of State rejected the extreme urgency suspension claim by BV M. against the Port of Antwerp-Bruges' decision not to award it the innovation partnership for PFAS purification of contaminated dewatering water, as the contracting entity did not exceed its assessment margin by treating a pilot setup with a flow rate 13 times below the lower end of the indicative range and a duration of only one month (instead of three) as a negative point, and the indicative technical specifications did not constitute an unjustified restriction of competition.
What happened?
The Port of Antwerp-Bruges tendered through an innovation partnership for innovative purification technologies for PFAS-contaminated dewatering water. The partnership comprised three phases (lab scale, pilot scale, full-scale engineering) with a funnelling mechanism. BV M. was selected and submitted an offer. The specifications provided two award criteria: price (25 points) and quality (75 points, with a 60% threshold). During negotiations, BV M. was expressly asked to align its pilot setup flow rate and duration with the specifications (indicative range 0.1-10 m³/h, 3 months). BV M. proposed only 190 litres/day (approx. 8 litres/hour — 13 times below the lower bound) and a one-month duration, maintaining this in its adjusted offer. BV M. scored 41/75 (below the 60% threshold) and was ranked last. The Council rejected both grounds: the assessment was based on a global evaluation, the scoring change from 3/5 to 2.5/5 was justified by the new comparative assessment after negotiations, and the indicative specifications were not disproportionate given their purpose of ensuring pilot representativeness.
Why does this matter?
This ruling clarifies several principles for innovation partnerships and qualitative assessment: indicative specifications are not hard minima but may serve as assessment elements; a new comparative assessment after negotiations may legitimately score unchanged elements differently; the authority's margin for qualitative criteria is broad; and indicative ranges are not easily deemed disproportionate when justified by representativeness objectives.
The lesson
As a contracting authority: indicative technical specifications can legitimately serve as assessment elements for qualitative criteria. Document why parameters matter and communicate this during negotiations. As a tenderer: do not assume 'indicative' means deviations carry no consequences — a deviation 13 times below the lower bound can be treated as a negative point. When the authority expressly asks you to adjust during negotiations, ignoring this in your adjusted offer will be held against you.
Ask yourself
As a contracting authority: is it clear which technical parameters will serve as assessment elements? Have you communicated their importance during negotiations? As a tenderer: does your pilot proposal deviate significantly from the specified parameters? Have you addressed remarks from the negotiation meeting in your adjusted 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 →