A subcontracting agreement without a date and without a price — but with a clear commitment to perform the work
The Council of State suspends the City of Kortrijk's decision to exclude a tender as substantially irregular because the subcontracting agreement with the ISO 17025-certified subcontractor was undated and contained no price, while the agreement did contain a clear commitment to perform the relevant part of the contract.
What happened?
The City of Kortrijk tendered sewer cleaning and inspection services. The specifications required an ISO 17025 certificate as a selection criterion. The applicant did not hold this certificate itself but included a signed subcontracting agreement with subcontractor X — who was certified — committing X to perform the visual inspection work requiring the certificate. X's certificate was also attached. The city declared the tender substantially irregular: (1) no formal 'commitment to make resources available' as required by the specifications, and (2) the agreement was undated and contained no price. The Council disagreed. Article 78 of the Public Procurement Act allows tenderers to rely on third-party capacity. Article 72 §1 of the Royal Decree allows 'all appropriate means' to prove this. A signed agreement where a certified subcontractor commits to perform the relevant part of the contract constitutes, prima facie, a sufficient commitment. Neither the law nor the specifications impose special form requirements — a date and price are not required. The Council also noted that the winning tenderer's file did not contain a formal commitment document from its subcontractor either — the authority applied a stricter standard to the applicant.
Why does this matter?
This ruling confirms that relying on third-party capacity requires no specific form or standard document. A signed agreement committing the subcontractor to perform the relevant work suffices. Contracting authorities must apply the same standard to all tenderers.
The lesson
For tenderers: relying on a subcontractor's capacity requires no specific form. A signed agreement committing the subcontractor to perform the relevant part of the contract can suffice — even without a date or price. For contracting authorities: Article 72 allows 'all appropriate means.' Don't interpret this more restrictively than the law permits, and apply the same standard to all tenderers.
Ask yourself
Planning to exclude a tender because the capacity document lacks the right form? Check whether the substance contains a clear commitment. Are you applying the same standard to all tenderers?
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 →