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.
What happened?
In December 2018, the City of Ghent launched an open procedure for the restoration of the protected gas holders on Gasmeterlaan/Tondelierlaan — specification BOU/2016/030/ID 4080. The notice appeared on 13 December 2018 and was amended on 5 February 2019. Sole award criterion: price. Required accreditation: D24 (Restoration of monuments), class 7. The specification set heavy selection requirements: study qualifications (diplomas and certificates of the operators, in particular those leading restoration works), professional qualifications (years of relevant experience), and a reference list of at least three restorations of listed monuments with comparable difficulty, for an amount equal to or greater than 85% of the bid amount for the listed part, completed in the past ten years. For the specific 'riveting' technique, at least one reference of mounting metal trusses, beams or plates via riveting was required, worth at least €100,000 excl. VAT — and, if the riveting was subcontracted, separately for each subcontractor. Four bidders submitted, including Monument Vandekerckhove and the temporary association Denys – Aelterman. By letters of 23 April and 20 May 2019, the City asked Vandekerckhove for additional documents and clarifications on the technical capacity of the subcontractors on whose capacities it relied for the riveting. Vandekerckhove answered each time. In the award report of 26 June 2019, the contracting authority concluded: of the three subcontractors proposed by Vandekerckhove, only one met the selection requirements; for the other two, diplomas were missing and references were inadequate. Vandekerckhove was not selected. The contract was awarded on 10 July 2019 to Denys – Aelterman. On 21 August 2019, Vandekerckhove filed for suspension under extreme urgency. Single plea: violation of articles 78 and 81 of the 2016 Procurement Act and of article 73, §1, second paragraph of the Royal Decree on Award. Vandekerckhove argued that this provision obliges the contracting authority to demand the replacement of a subcontractor that does not meet a selection criterion. Only if the bidder refuses replacement may exclusion follow. The City had not requested replacement and had immediately excluded Vandekerckhove. The Council swept that aside. Vandekerckhove assumed a 'blind application' of article 73 with no discretion for the contracting authority. But article 73, §1, second paragraph transposes article 63, paragraph 1, second sub-paragraph of Directive 2014/24/EU. Recital 105 of that directive makes clear that the aim is to safeguard subcontractor quality and to give contracting authorities tools, not to grant bidders a guaranteed cure. The Council also referred to the CJEU's Casertana Costruzioni judgment (14 September 2017, C-223/16): equality and transparency oppose negotiation between authority and bidder — a bid may, in principle, not be amended after submission. An unconditional right to replacement could moreover paralyse the authority despite glaring errors in the bidder's choice of subcontractors. When the authority finds that allowing replacement would breach equality, it may decline replacement and exclude immediately. The Council ruled that article 73 leaves a degree of discretion — the opposite was the plea's premise; the plea was therefore not serious. The action was dismissed. Vandekerckhove was ordered to pay a court fee of €200, a contribution of €20 and procedural costs of €700; the intervener's court fee of €300 was halved.
Why does this matter?
Many bidders assume that article 73, §1, second paragraph of the Royal Decree offers a 'second chance': if one subcontractor falls short, the bidder gets a chance to replace. This judgment punctures that certainty. The contracting authority has discretion. With two non-compliant subcontractors — as with Vandekerckhove — or where replacement would breach equality, the authority may exclude immediately. For bid managers this means: subcontractor selection must already be right before submission. Do not rely on a post hoc remedy. Verify diplomas, check every reference against the specification's wording, demand evidence — especially for specialised techniques like riveting, monument restoration or heritage. For contracting authorities, the ruling confirms that they keep the wheel, provided the exclusion is properly motivated.
The lesson
Treat your subcontractors before submission with the same rigour as your own bid. Collect diplomas, references with certificates of good performance, completion reports, and check every document against the exact wording of the specification. For specialised techniques (riveting, restoration, heritage): keep a second and third alternative subcontractor on standby — not to replace one, but to submit three correctly from the start. A subcontractor shortfall is in practice a death sentence for your bid.
Ask yourself
For each subcontractor in your bid: do you have (1) their diplomas and certificates, (2) their references with the exact amounts the specification requires, (3) completion reports or certificates of good performance, (4) a commitment statement? Three 'yes'? Fine. Two 'maybe'? Replace now, before submission — not after.
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 →