Solar panels on the UZ Gent parking structure — no unlimited freedom of choice when the specifications contain a formula
The Council of State rejects the claim of a solar panel company challenging the award of an installation contract, ruling that a price criterion based on the total bill of quantities creates no unlimited freedom of choice, and that an annual yield criterion with mandatory PVsyst simulation provides prima facie objective verification.
What happened?
UZ Gent tendered solar panel installation on its staff parking building via open procedure. The specifications used functional requirements: tenderers determined panel layout, orientation and tilt angle themselves, subject to minimum technical requirements. Two award criteria: price (60 points, based on total bill of quantities) and expected annual yield in kWh per PVsyst simulation (40 points). Of eight tenderers, five were excluded for technical irregularities. The winner scored 99.04 points, the applicant 91.65. This was the second award decision after the first was withdrawn following an earlier challenge. Three grounds were raised: (1) the price criterion was ambiguous (total price vs. price per kWp) — rejected because the formula explicitly referenced the total bill of quantities; (2) no verification of realistic annual yields — rejected because mandatory PVsyst simulation notes provided objective verification, and the winner's yield fell between the other two offers; (3) insufficient motivation after withdrawal and re-award — rejected because the authority explicitly described its thorough review and the formula-based scoring was transparent.
Why does this matter?
This ruling shows how functional specifications and performance-based award criteria hold up when the specifications include an objective verification mechanism. In Design & Build contracts where tenderers determine the technical solution, standardized simulation software can provide sufficient comparability.
The lesson
For contracting authorities: in Design & Build with functional specifications, a performance-based criterion is defensible if you build in an objective verification mechanism like mandatory simulation software. Formulate your price criterion unambiguously. For tenderers: if the specifications contain an explicit formula, arguments about unlimited freedom of choice have little chance. Check whether your own yield isn't significantly lower than competitors with comparable installed capacity.
Ask yourself
Arguing that a price criterion creates unlimited freedom of choice? Check whether the specifications contain an explicit formula. Challenging the realism of a performance criterion? Check whether the specifications provide an objective verification mechanism.
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 →