A commitment letter from your parent company is NOT a formality — leave it out of your application and you lose the contract, even after four years of proceedings
The Council of State rejects Chantiers Allais's urgent suspension request against its non-selection for the river patrol boats: any candidate relying on the financial capacity of its parent company must include a formal commitment letter from that parent in its application — group affiliation does not suffice, and post-deadline supplements are worthless, even when the contracting authority initially missed the flaw.
What happened?
On 13 June 2017 the Federal Police published a tender in the EU Official Journal for a 7-year framework agreement covering the purchase and 10-year maintenance of patrol boats for the navigation police — under the defence and security regime. Six candidates were selected, including French SAS Chantiers Allais (a wholly-owned subsidiary of Groupe EFINOR). On 17 December 2018 the contract was awarded to Chantiers Allais (score 80.24/100), ahead of SOCARENAM (78.73) and Astilleros Armon (55.87). SOCARENAM immediately filed an urgent suspension at the Council of State, contesting among other things the selection of Chantiers Allais. Reviewing the file, the Federal Police discovered the selection had indeed been wrong: point 3 of annex B required an average annual turnover of at least €2.2 million over the last three financial years. Chantiers Allais had only included a turnover statement of EFINOR (the parent), signed by EFINOR's general manager. What was missing: a formal commitment by EFINOR to make its capacity available, drawn up using the mandatory model form in annex I. On 8 February 2019 the Federal Police withdrew its award decision. Chantiers Allais sought to suspend that withdrawal but was rejected on 21 March 2019 (judgment 244.006). On 29 April 2019 Chantiers Allais belatedly transmitted a commitment letter from EFINOR — dated 11 February 2019, well after the candidacy deadline. On 10 October 2019 the Federal Police definitively notified Chantiers Allais: not selected; the contract goes to SOCARENAM. Chantiers Allais sought urgent suspension a second time, on five grounds. The second ground — the heart of the case — argued that proof of financial capacity had been delivered (via the EFINOR statement), that the contracting authority should at least have asked the candidate to supplement the file, and that equality was breached because other candidates had received clarification questions. The Council of State sides entirely with the Federal Police. Article 79 of the Royal Decree of 23 January 2012 (defence) — analogous to article 78 of the Royal Decree of 18 April 2017 — provides that a candidate relying on a third party's capacity must prove it by a formal, firm and explicit commitment of that third party, signed by persons authorised to bind it. A simple turnover statement does not qualify. The fact that the third party is the parent company, or that the two belong to the same group, is irrelevant: legally they are two separate persons. Equally important: the contracting authority can revisit a selection decision at the time of the award decision, since a contract may only be awarded to an operator whose capacity is established. As to the alleged unequal treatment: five candidates had indeed received questions, but never to allow a candidate to add a missing commitment letter retroactively. A commitment letter post-dating the candidacy deadline (such as EFINOR's 11 February 2019 letter) carries no legal weight — it had to exist on the closing date. Suspension rejected; the contract proceeds to SOCARENAM.
Why does this matter?
For anyone relying on the capacity of another entity — parent, subsidiary, partner, supplier — this is one of the harshest lessons the Council of State has repeatedly delivered. The legal logic is uncompromising: a contracting authority may only award to an operator whose capacity is established, and that capacity must be contractually available at the moment the contracting authority decides. A simple statement that your parent 'is fully part of your group' is irrelevant. What matters is a signed, unambiguous commitment by that entity to make its means available for the execution of that specific contract — dated on or before the deadline. For contracting authorities the other side is no more comfortable: you can revisit a selection decision once you discover, at the award stage, that a candidate did not actually meet the selection criteria. But that revision must be supported by a formal, documented analysis, and you cannot retroactively cure the issue by requesting documents post-deadline. The cycle of proceedings that followed this award (award → suspension → withdrawal → non-selection → suspension) shows where carelessness leads: four years of procedure over what was a simple selection question in 2017.
The lesson
When relying on the capacity of another entity in your candidacy, check three things before submission: (1) is the commitment letter in the file, signed by a person able to legally bind the third party? (2) Use the mandatory model form included in the procurement documents — improvisation, even if substantively complete, can be rejected. (3) Is the declaration explicit about what the third party makes available — financial means, technical staff, equipment — and for which contract? A vague 'we support our subsidiary' is not the same as a formal commitment on this specific tender. And never count on the contracting authority asking you to supplement — that option does not exist in defence procurement or in classical sectors.
Ask yourself
Does your bid relate to a contract where you rely on the capacity of a parent, sister or subsidiary entity? Reopen the file: is there a document called 'commitment letter' / 'déclaration d'engagement' / 'verklaring van engagement', following the model form in the procurement documents, dated on or before the deadline, signed by a person authorised to bind the third party? If any of these elements is missing, you are on the edge. The case law treats the omission as an incurable defect — a group relationship does not change that.
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 →