Subcontract the critical task and you are out of the race: ABOG and Heyrman-De Roeck lose the Scheldt sweep-dredging contract to Jan De Nul
The Council of State rejects the extreme-urgency action by the temporary partnership ABOG–Heyrman-De Roeck against the award of the three-year sweep-dredging contract on the Sea Scheldt to Jan De Nul: because the specifications designated the continuous sweep-dredging with a sweep beam (type SB1) as a critical task to be performed by the bidder itself, the Maritime Access authority was entitled to declare the bid — which relied on subcontractor H. for precisely that task — substantially irregular, and that self-execution requirement is, given the ever busier and more dangerous shipping traffic, objectively and reasonably justified under article 78 of the Procurement Act.
What happened?
The Flemish Region, Department of Mobility and Public Works, Maritime Access division, launched an open procedure for a services contract 'Sustainable sweep-dredging, removal of floating debris and oil clearance' (specifications MT/02422), with price as the sole award criterion and a three-year term. The heart of the contract is keeping the fairway on the Sea Scheldt clear between the Wintam sea lock and the Dutch border: a standard twelve shifts a week, around the clock, with a vessel fitted with a type SB1 sweep beam. In the specifications (part 2, point 2.1, applying article 78 of the 2016 Procurement Act) the authority designated those 'sweep-dredging works (type SB1)' as a critical task: bidders could not rely on the capacity of other entities for it but had to perform it themselves. Subcontracting was allowed only for on-call and temporary replacement vessels. On 23 December 2022 the Region decided to award the contract to NV Jan De Nul and to declare the bid of the ABOG–Heyrman-De Roeck partnership substantially irregular, precisely because it relied on subcontractor H. for the dredging. The partnership brought an extreme-urgency action before the Council of State with two grounds. In the first, it argued that the specification clause itself was unlawful: item 1 'dredging' allegedly represents at least 75% of the contract, and so broad an exclusion of subcontracting would conflict with the free movement of services and with Court of Justice case law (Wrocław, Borta). The Council first holds, citing its Labonorm judgment no. 152.173, that the partnership could still admissibly raise its objection against the later award and irregularity decisions, even though it had not flagged a legality objection beforehand. On the merits, it finds that article 78, third paragraph, of the 2016 Act — enacted to transpose article 63(2) of Directive 2014/24/EU — expressly allows the authority to require certain critical tasks to be performed directly by the bidder itself. Under the Court's case law (C-642/20 Caturer, C-324/14 Partner Apelski) that restriction must be defined qualitatively, not merely quantitatively; it is primarily for the authority to designate the critical tasks, and the Council reviews only whether that assessment rests on sound justification and stays within a reasonable margin. Here the Region and Jan De Nul made it plausible that the dredging is a delicate, strategic and continuous task, in ever busier zones of the Scheldt, with a growing risk of accidents that immediately affect access to the ports; that it requires specialised equipment (an SB1 vessel) and an experienced skipper; and that the authority has no direct legal control over a subcontractor. That the task makes up a large share of the contract does not detract from this, and the fact that article 78 has only allowed such self-execution requirements since 2017 explains why the 2014 and 2018 specifications did not yet contain it. The partnership could simply have taken its subcontractor on as a member of the temporary partnership. The first ground is not serious. In the second ground the partnership argued that its bid was wrongly declared irregular, since it would perform the dredging itself through a third crew member under its supervision and merely hire H.'s vessel. Its own bid — a confidential document the Council was able to consult — however revealed an undertaking between ABOG and H. 'for items 1 to 5, concerning sweep-dredging works', and that it also deployed the subcontractor's skipper and technician. The distinction between 'the decisions about the dredging' and 'the operation of the sweep beam' the Council calls artificial: the latter too is an aspect of the dredging works. The partnership therefore did not show that the Region breached article 78. That the Region formally labelled the non-compliance a regularity problem when it is really a selection matter is an error that did not mislead the partnership and in which it has no interest. The second ground is not serious either. Since no ground is serious, the Council rejects the action. The applicants are ordered to pay the costs (court fee €400, each for half, a contribution of €24 and a procedural indemnity); Jan De Nul's intervention is admitted.
Why does this matter?
For anyone building bids on a mix of own staff and partners, this judgment is a sharp warning. Since article 78 of the 2016 Procurement Act, an authority may designate certain 'critical tasks' that the bidder must perform directly itself — and the Council grants it a wide margin of assessment in doing so, even where such a task covers the bulk of the contract. Bringing in a subcontractor for precisely that task makes your bid substantially irregular, however strong that subcontractor's written commitment may be. The difference between winning and losing here lies in the legal form of the cooperation: a party who takes the partner that masters the critical task on as a member of the temporary partnership or consortium does meet the requirement; a party who appoints that same partner as a subcontractor falls outside it. ABOG and Heyrman-De Roeck had the capacity, but flaws in the structure cost them a three-year contract.
The lesson
Read every set of specifications closely for which tasks are designated 'critical' or 'essential' under article 78, and which you therefore have to perform yourself. If you want to rely on someone else's expertise or equipment for precisely that task, take that partner on as a full member of your temporary partnership or consortium — not as a subcontractor, because then you fail the self-execution requirement and your bid is rejected. A subcontractor's undertaking, however watertight, does not offer the same guarantee. Nor count on hiring only the equipment (the vessel, the machine) while claiming to make the 'decisions' yourself: the Council sees operating the device as an inseparable part of the critical task. And if you consider the self-execution requirement itself unreasonable, know that you can still raise that objection after the award — but that the authority has ample room to let a safety or continuity motive prevail.
Ask yourself
Take your last bid for a services or works contract in which you worked with a partner. Did the specifications designate a task as 'critical' or 'essential' that the bidder had to perform itself? If so: did you take that partner on as a member of your consortium or temporary partnership, or merely as a subcontractor? In the second case your bid was probably substantially irregular — even if you did most of the work yourself. And if you only hired the equipment for the critical task: do you really perform every operation yourself, or does the owner of the device help operate it?
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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 →