Who is a subcontractor’s client? SPI clarified it only in its pleadings, and loses the Pepinster footbridge
SPI excluded Nelles Frères from the contract for rebuilding the public-welfare-centre footbridge in Pepinster because its certificate of satisfactory completion was signed by the main contractor rather than by the ‘final beneficiary’ of the works, but that reading of the term ‘client’ appeared nowhere in the contract documents — and the Council of State suspended both the non-selection and the award for breach of the transparency principle.
What happened?
By decision of 20 March 2026 the inter-municipal cooperative SPI launched an open-procedure works contract for ‘the resilient reconstruction of the banks of the Vesdre basin – Pepinster: reconstruction of the public-welfare-centre footbridge’ — restoring infrastructure in the area hit by the Vesdre floods. The estimated value was 404,026.75 euros excluding VAT. The contract notice was published on 23 March 2026 on the national e-Procurement platform and was followed by five corrigenda. The contract documents (no. 2026-2487) required, under qualitative selection, at least one reference to a similar site involving a footbridge or bridge, accompanied by a certificate of satisfactory completion authenticated by the client and by a short description of at most one A4 page, drafted by the economic operator, setting out the precise nature of the works carried out. Six tenders were submitted, including that of Nelles Frères. On 6 May 2026 SPI emailed Nelles Frères a question about its references. That email went unanswered. By an undated decision, apparently taken on 12 June 2026, SPI decided not to select Nelles Frères because it presented only one of the two required references, and to award the contract to the temporary partnership TEGEC-GEHLEN-TRAGECO, which had submitted the regular tender that was economically most advantageous on price, for 428,994.72 euros excluding VAT. On 16 June 2026 SPI informed Nelles Frères by registered letter and electronically; the same day it informed the successful bidder, specifying that the notification concluded the contract. Nelles Frères contested the decision by letters of 18 and 25 June; SPI confirmed its position on 23 and 29 June, with some clarification. On 1 July 2026 Nelles Frères sought suspension under extreme urgency. At the hearing of 16 July it withdrew the limb of its application directed against the implicit decision not to award it the contract. The core of the dispute was narrow and sharp. Nelles Frères had submitted a certificate of satisfactory completion for works it had carried out as a subcontractor, signed by the private undertaking for which it had acted. It argued that in construction law the subcontract is itself a contract for works, subject to the same rules as the main contract, and that in its relations with the subcontractor the main contractor occupies the position of client: it orders the works and pays for them. SPI maintained that ‘client’ in the contract documents had to mean the final beneficiary of the works, so that satisfactory completion is confirmed independently of the beneficiary of the certificate; it added that Nelles Frères’s tender also lacked the required descriptive note, and that Nelles Frères had given no useful response to its question of 6 May. The Council of State accepted neither argument. The second ground — the missing descriptive note — appeared neither in the contested act, nor in the administrative file, nor even in the letter of 23 June by which SPI had sought to clarify its decision. It did not appear to have determined the decision and could not be taken into account at this stage. On the first ground, the Council recalled what article 65 of the Royal Decree of 18 April 2017 requires: an authority imposing a qualitative selection criterion must formulate it with sufficient precision, attach an appropriate threshold, choose the acceptable means of proof, and publish all of that in advance in the notice or the contract documents. That publicity requirement rests on the transparency principle of article 4 of the Law of 17 June 2016, which demands that conditions and arrangements be formulated clearly, precisely and unequivocally, so that all reasonably informed and normally diligent tenderers grasp their exact scope and interpret them in the same way, and so that the authority itself can verify whether the tenders comply. The clarification SPI offered in its pleadings could prima facie be understood in the light of its objective, but it thereby added to the text of the contract documents. And that addition was anything but innocuous: it was precisely what allowed SPI to reject the disputed certificate. The authority could not depart from the wording of the means of proof it had itself used. It followed that Nelles Frères could not be blamed for not answering the letter of 6 May — the Council adding that the letter had been sent to an email address other than the contact address given in the tender form, and had not been transmitted through the electronic platform. That the certificate was not signed by an architect was equally immaterial: the contract documents imposed no such requirement. Prima facie, SPI could not exclude Nelles Frères on the ground advanced without breaching the transparency principle and its own contract documents. The plea was serious to that extent, without any need to examine the other complaints. On the balancing of interests, SPI identified no negative consequences of a suspension that would outweigh its benefits, and the Council saw none. It ordered the suspension of the decision of 12 June 2026 and the immediate execution of its judgment, kept all tenders confidential at this stage, and reserved the costs including the procedural indemnity.
Why does this matter?
The word ‘client’ seems self-evident until someone writes it into a selection criterion. For an authority that wants satisfactory completion confirmed by someone with no stake in it, the final beneficiary is the obvious figure. For a contractor who worked as a subcontractor, the main contractor is just as obviously its client — it ordered the works and paid for them. Two reasonable readings of the same word: precisely the situation the transparency principle exists to prevent. The Council of State draws the only consistent conclusion. The clarification SPI adds afterwards is substantively understandable — the Council says as much — but it comes too late, because it is exactly what renders the certificate unusable. An authority that fixes the meaning of its criterion only while assessing a tender determines the outcome after the fact. Equally instructive is what happens to the second ground. In its pleadings SPI advanced an additional reason — the missing descriptive note — that might have held on its own. But that reason appeared neither in the contested decision, nor in the administrative file, nor even in the letter in which SPI had clarified its decision. A ground that did not support the decision cannot save it before the Council. Finally, a detail of practical reach: the request for clarification of 6 May had been sent to an address other than the contact address in the tender form, and not through the e-Procurement platform. An authority that reproaches a bidder for silence must first be able to show it reached it properly. That the judgment orders its own immediate execution is no formality: the contract had already been concluded on 16 June by the notification to the successful bidder, and the site concerns the restoration of infrastructure after the Vesdre floods.
The lesson
As a contracting authority, define in the contract documents themselves what you mean by a key term as soon as that term admits more than one reasonable reading. ‘A certificate authenticated by the client’ is not unequivocal where bidders may also have worked as subcontractors: state expressly that you require the certificate of the final beneficiary, or accept the certificate of the contractor’s own principal. Fix the means of proof as well — who signs, and in what capacity — because article 65 of the Royal Decree obliges you to publish the acceptable means of proof in advance. Add nothing afterwards: what you clarify in your pleadings does not count when it determines the outcome. Make sure, too, that every ground you rely on can be found in the decision itself and in the administrative file; a reason surfacing only during the proceedings will not be taken into account. And communicate through the address the bidder gave in its tender form, or through the platform — otherwise you cannot hold its silence against it. As a bidder, read the evidential requirements as carefully as the technical ones, and ask for clarification in time where a term such as ‘client’ is open to discussion in your case. If you submit a reference earned as a subcontractor, your position is defensible — but you strengthen it by explaining at once why the signatory is the client in that relationship. And check which contact address appears in your tender form: it determines where requests for clarification arrive, and here it saved the case.
Ask yourself
Does your selection criterion admit only one reading, including for a bidder who carried out the work as a subcontractor? Have you laid down in the contract documents who must sign the certificate of satisfactory completion, and in what capacity? Does every ground on which you base a non-selection appear verbatim in the decision and in the administrative file — or do you discover one only while drafting your defence? Did you send your request for clarification to the contact address in the tender form, or through the electronic platform? And as a bidder: have you checked that the address in your tender form is the one you actually monitor?
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 →