Interpreting a specification from what is not prohibited is not interpretation — it is wishful thinking
A tenderer who derives from a tolerance clause ('deviations up to 100% are conforming') that it need not offer a required product at all distorts the logic of the specifications and is rightly excluded.
What happened?
The City of Antwerp, acting as a central purchasing body, launched a framework agreement for drinking water fountains. The specifications required two CO2 cartridge sizes: a small cartridge of approximately 2 kg and a large one of approximately 4 kg. The technical specifications stated that volumes 'may be interpreted broadly' and that 'deviations of more than 100% are considered non-conforming.' One tenderer offered only 2 kg cartridges for both posts — at the same price — arguing that a 2 kg cartridge falls within the 100% tolerance for the 4 kg post. The contracting authority declared the tender substantially irregular for failing to provide a price for the large cartridge.
Why does this matter?
This judgment illustrates the danger of reading specification clauses in isolation rather than in context. The 100% tolerance margin is intended to accommodate variation in product packaging — not to eliminate the requirement for two formats altogether. The Council emphasizes that specifications must be read as a whole: the inventory, the technical specifications and the subject matter of the contract all point in the same direction. The judgment also confirms that specifying two volumes is not a prohibited type reference under art. 53 §4 of the Public Procurement Act.
The lesson
Tolerance clauses in technical specifications widen the execution margin — they do not abolish the underlying requirement. A tenderer who derives from a deviation clause that it need not supply a required product at all is not reading the specifications as a whole but cherry-picking the passage that suits it.
Ask yourself
Do we read tolerance clauses in the context of the full specifications, or do we interpret them in isolation to our advantage? Do we actually offer the requested product for each separate inventory post, even where the specifications allow some margin? If we believe the technical specifications contain an unlawful type reference: can we concretely demonstrate which type, brand or make is favoured by it?
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 →