Rejection of extreme urgency suspension against irregularity declaration for e-bus charging infrastructure mini-competition De Lijn — maximum noise level of 65dB(A) correctly considered a minimum requirement despite absence of explicit label — imperative wording ('may not exceed'), measurement report obligation and threefold repetition suffice
The Council of State rejected BV A.'s extreme urgency suspension claim against De Lijn's declaration of its offer for the e-bus charging infrastructure mini-competition as substantially irregular for exceeding the maximum noise level (75dB(A) vs. 65dB(A)), as the authority correctly found this threshold to be a minimum requirement — the imperative wording, measurement report obligation and threefold repetition sufficed, even without an explicit 'minimum requirement' label.
What happened?
De Lijn tendered a framework agreement for e-bus charging infrastructure (special sectors, negotiated procedure). A mini-competition was launched between two framework participants. The type specification required DC charging systems not to exceed 65dB(A) noise level, with mandatory measurement reports. BV A. offered systems at 75dB(A) and was declared substantially irregular. The Council held that minimum requirements need not be explicitly labelled as such; imperative wording, proof obligations and repeated mention suffice. The reference to a ruling where the specifications systematically distinguished minimum requirements (code 'ME') was inapplicable as no such system was used here. A second ground on insufficient motivation of the scoring was inadmissible for lack of interest.
Why does this matter?
This ruling clarifies that a technical requirement need not be explicitly labelled 'minimum requirement' to qualify as one. The authority has discretion, and the characterization can be derived from context: imperative wording, proof obligations, repeated mention, and connection to the contract's purpose. An irregularly excluded tenderer lacks interest in challenging the scoring motivation.
The lesson
As a tenderer: do not assume that a technical requirement unlabelled as 'minimum requirement' cannot be one. Watch for imperative wording, proof obligations and repeated mention. As a contracting authority: explicitly label minimum requirements to avoid disputes, but know that clear imperative formulation combined with proof obligations suffices.
Ask yourself
As a tenderer: does your offered equipment meet all imperatively formulated technical requirements, even if not explicitly labelled as minimum requirements? Can you provide measurement reports or certificates? As a contracting authority: are your minimum requirements consistently and clearly formulated?
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 →