Subcontracting
Subcontracting is permitted but subject to rules. The tenderer may rely on the capacity of third parties (subcontractors) to meet selection criteria, provided the necessary commitments are submitted.
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.
A towing company whose permit doesn't allow night work complains the competitor has the same problem — but that actually weakens the argument
The Council of State rejects the suspension request of a towing company challenging the award of a framework agreement for towing and vehicle storage services, ruling that a contracting authority need not question the adequacy of submitted environmental permits for 24-hour service, especially when the applicant's own permit has the same limitation.
Sewer inspection Kortrijk: suspension due to unjustified exclusion of tenderer proposing the same subcontractor as another tenderer
The Council of State suspends the non-selection of a tenderer for a sewer cleaning and inspection contract in Kortrijk, because no legal provision or specification prohibits a subcontractor from offering its services to multiple tenderers — the prohibition on multiple tenders (Article 54(2) of the Placement Royal Decree) applies to the tenderers themselves, not their subcontractors, even when the subcontracted work constitutes the core element of the contract.
Winter services Bastogne: no damages despite annulment of award — applicant fails to prove extent of loss because he performed the services through his own company and as subcontractor
The Council of State rejects a claim for €42,070 in damages following the annulment of a winter services award in the Bastogne district, because the automatic 10% indemnity (article 16(3) of the Act of 17 June 2013) only applies when the contract was actually concluded — here the contract was never concluded as the suspension intervened before conclusion — and the applicant fails to demonstrate the extent of his damage, since his company (in which he holds 180 of 186 shares) obtained the replacement contract and he personally performed as subcontractor for the first winter period.
Road maintenance Baelen: price justification based on subcontractor offer for different quantities is manifestly unreasonable
The Council of State annuls the award of a road maintenance framework agreement because the contracting authority could not accept the winning tenderer's price justification for three bituminous surface treatment items — a mere reference to a subcontractor's offer without detailed substantiation is insufficient, and the subcontractor calculated prices based on 1,000 m² while the bill of quantities specified 100 m², meaning the unit prices for the bill quantities were not justified.
Rejection of extreme urgency suspension against award of renovation works at Hemptinne Barracks (Heverlee) via mini-competition under Defence framework agreement — mandatory site visit correctly verified via visit report — reliance on third party's capacity for contractor accreditation (category D, class 4) is permitted — accreditation does not expire automatically after five years but is subject to review
The Council of State rejected NV R.'s extreme urgency suspension claim against Defence's award of renovation works at Hemptinne Barracks (Heverlee) to BV G. via mini-competition under a framework agreement, as the mandatory site visit was correctly verified via the visit report, reliance on a third party's capacity (NV I.) for the required category D class 4 accreditation is permitted under the 2016 Act and 2017 Royal Decree, and the third party's accreditation had not automatically expired after five years but is merely subject to quinquennial review.
Relying on sub-contractors? Deliver their tax and social security records too – or fail qualification
The Council of State rejects mask producer L.I. DECOR's appeal against exclusion by the French Community: a bidder relying on third-party capacity in a COVID mask procurement also had to prove those third parties had no social or tax debts.
A consortium cannot 'borrow' a missing statutory authorisation from its licensed partner
The Council of State rejects the suspension: when a contract covers regulated activities such as private security, each member of a consortium must hold the required authorisation personally — reliance on a third party's capacity is excluded for such 'specific authorisations'.
Your tender specifications were suspended for lack of reasoning? You don't have to lower the bar — you just have to explain better why it's set so high
After the Council of State suspended the first tender specifications for Belgium's national day festivities on grounds of inadequate reasoning for the turnover threshold, the Chancellery was allowed four days later to launch a new tender with exactly the same heightened requirements — because the res judicata of a suspension ruling does not prevent the contracting authority from taking the same decision if it fixes the illegality (the reasoning).
Asbestos removal authorisation? You can't 'borrow' it from a subcontractor
The Council of State suspends the award of a demolition contract because the winning bidder lacked the required asbestos removal authorisation, which — classified in the tender documents as a 'suitability to pursue the professional activity' requirement — cannot prima facie be satisfied through reliance on a subcontractor's capacity.
Demanding a 'team member for acoustics' without any selection criterion for acoustics: Getevallei police zone must redo the selection
The Council of State suspends the non-selection of LAVA Architects for the conversion of the police building in Tienen because the police zone excluded it for 'missing team member for acoustics and safety coordination' — while the selection guide imposed no selection criterion for those disciplines and LAVA bid as a single legal entity, not as a consortium.
Mentioning 'our trusted partner' in your method statement = implicitly relying on third-party capacity — UEA or no UEA
T&D Security loses the City of Ghent parking surveillance tender because their method statement names a licensed alarm centre (nv P.G.) as a partner without filing a UEA and capacity-commitment letter for that partner — result: substantial irregularity and mandatory annulment of the offer.
Three references that together cover all disciplines — not enough when the selection guide says 'both … and …'
The Council of State suspends the selection of KRAS Architecten because the municipality of De Pinte 'added up' disciplines from three different reference projects, while the selection guide explicitly required each reference to cover all disciplines on its own.
If your tender allows subcontracting and the bidder names Bpost as subcontractor, you cannot reject them with 'you don't have the BIPT licence'
The Council of State annuls the award of Defence's multi-year postal services contract to Bpost because Postalia Belgium's offer was declared irregular for lacking a BIPT licence, while that offer explicitly designated Bpost as subcontractor for distribution — a possibility the tender itself expressly allowed.
May the contracting authority allow a flawed subcontractor to be replaced — or must it? The Belgian Council of State refers the question to the CJEU
The Council of State reopens the debate in the annulment action against the award of a Ghent restoration contract and refers two preliminary questions to the Court of Justice on whether a contracting authority is obliged, or merely allowed, to require a tenderer to replace a subcontractor that does not meet the selection criteria.
Two questionable subcontractors in your file? The contracting authority does not owe you a second chance
The Council of State dismisses Monument Vandekerckhove's appeal against the award of the Ghent gas-holder restoration: article 73, §1, second paragraph of the Royal Decree on Award gives a bidder no unconditional right to replace a non-compliant subcontractor — the contracting authority retains discretion, and the equality principle may oppose replacement.
'Yes' on the bid form and 'no' on the ESPD: not a calculation error, but a ground for exclusion
Dockx Movers lost its extreme-urgency challenge against Artesis Plantijn Hogeschool because it ticked 'yes' to subcontracting on the bid form but twice answered 'no' in the attached ESPD — a contradiction the Council qualifies as a substantial irregularity that can no longer be cured under article 34 of the Royal Decree of 18 April 2017.
Bidding stricter than the special specifications require gives no advantage – not even when the Standard Specifications 250 are stricter
ADEDE loses the contract for clearing WW explosives on the Flemish coast by a single point to a construction company that bid with only one CTE expert, and hears from the Council of State that the special specifications may deviate from the Standard Specifications 250 which normally require two CTE experts.
A turnover requirement of fifty times the contract value is striking — but if one valid exclusion ground holds, the appeal does not fly
The Council of State rejects VR Conteneur's extreme-urgency action against Intradel: even if the requirement of €10 million annual turnover for a contract worth €200,000 is debatable, the non-selection also rests on the absence of a welding robot — a requirement Intradel was entitled to set — and the awardee ANG could rely on its Polish subsidiary's consolidated turnover under article 74 RD 15/07/2011.
Eight references from your Swiss supplier? Without a written commitment, none of them count
The Council of State refuses to select Medtradex because the bidder could not produce three of its own references for a detergent dispensing system, and the references of its Swiss supplier Borer Chemie were unusable without a written commitment under article 74 of the 2011 procurement-placement royal decree.
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This page shows all rulings of the Council of State (Belgium's supreme administrative court) on subcontracting in public procurement. Each ruling is summarized by TenderWolf in plain language, with a legal lesson and a practical question to ask yourself. View all rulings →