Rejection of extreme urgency suspension against award of lot 2 (pellets) of fuel supply framework agreement — no interest in ground challenging selection criterion (turnover 11 times higher than previous contract) since applicant was excluded for substantial irregularity (missing inventory) — new ground on attributee's signature rejected on merits
The Council of State rejected Green-Tech's extreme urgency suspension claim against the Province of Liège's award of lot 2 (pellets) of a fuel supply framework agreement to Proxifuel, as the applicant could not demonstrate interest in the first ground (illegality of selection criterion requiring turnover 11 times higher than previous contract) since it was excluded for unrelated reasons — missing inventory constituting substantial irregularity — and the new ground challenging the validity of the attributee's electronic signature was rejected on the merits.
What happened?
The Province of Liège tendered through an open procedure a framework agreement for fuel supply (heating oil, pellets, wood chips) for its establishments and 72 beneficiary authorities (2025-2028), acting as central purchasing body. The contract was divided into three lots. Green-Tech submitted offers for lots 2 (pellets, €3M) and 3 (wood chips, €800K) but had questioned the selection criterion requiring minimum annual turnover, which it considered 11 times higher than the previous contract and exceeding double the estimated market value. Green-Tech's offer was excluded as substantially irregular for failing to include the required inventory, preventing price verification. The Council held that even for public order rules, the applicant must demonstrate injury or risk of injury; the allegedly illegal selection criterion had not prevented Green-Tech from tendering or being selected. A new ground challenging Proxifuel's electronic signature was admissible but unfounded, as Proxifuel had included a valid power of attorney.
Why does this matter?
This ruling affirms that the requirement to demonstrate injury or risk of injury applies regardless of the gravity of the alleged illegality, including public order rules. A tenderer excluded for substantial irregularity cannot usefully invoke the illegality of a selection criterion that did not prevent it from tendering. However, such a tenderer retains interest in challenging the regularity of the successful tenderer's offer.
The lesson
As a tenderer: ensure all required documents, including inventory forms, are included — their absence constitutes substantial irregularity. Challenge selection criteria before the deadline for submitting offers, not after exclusion for unrelated reasons. As a contracting authority: ensure minimum turnover thresholds comply with the statutory cap (double the estimated value) and document justification for high thresholds.
Ask yourself
As a tenderer: have you included all documents required by the specifications, including the inventory? Is your offer signed by an authorized person? As a contracting authority: is the minimum turnover threshold proportionate to the market value? Have you motivated the substantial nature of any irregularity found?
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 →