A legally required authorisation does not have to be present at the time of the offer — even for emptying septic tanks — if the specifications do not impose it as a selection criterion
The Council of State refuses to suspend the award to TPRecup of lot 3 (waste collection and septic tanks) at Spa-Francorchamps, holding that the absence of the Walloon authorisation as 'vidangeur agréé' at the time of the offer does not constitute irregularity when neither regulation nor specifications impose it as a selection criterion.
What happened?
In the same Spa-Francorchamps tender as ruling 256144 (see there for the factual background), lot 3 — waste collection, waste treatment and emptying of septic tanks — went NOT to Remondis (the outgoing service provider) but to TPRecup. Remondis went to the Council of State under extreme urgency. First argument: TPRecup would not meet selection criterion n°1 because its references did not show 'emptying of septic tanks'. The Council first examines the correct reading of the selection criterion ('A list of the principal services provided in the past three years'). The criterion does not require that the references provided cover every single service in the lot — a 'normally prudent and diligent operator' cannot read it that way, and such a reading would restrict competition. TPRecup's references on 'container collection and waste treatment' were prima facie deemed pertinent by Spa-Francorchamps for lot 3 ('waste collection, waste treatment and emptying of septic tanks'). That is not a manifest error of appraisal. Moreover, Remondis itself was not explicit in its offer about which of its references concerned 'emptying of septic tanks'. Second argument: TPRecup does not hold the authorisation as 'vidangeur agréé' under art. R390 of the Walloon Water Code. Emptying septic tanks without an authorised emptier is a criminal offence (art. D395, paragraph 2, 5° of the Code). Remondis argued that TPRecup's offer therefore contains a substantial irregularity, and that obtaining the authorisation after award would breach equality and the principle of inviolability of offers. The Council holds that the Walloon rules only require the emptying itself to be done by an authorised emptier — not that a bidder must hold that authorisation when submitting its offer. The specifications provided art. 66, paragraph 2 of the Awarding Royal Decree as an option for the contracting authority ('where economic operators need a specific authorisation [...] to provide the service concerned'), but Spa-Francorchamps did not exercise that option: nowhere in the specifications is the vidangeur authorisation mentioned as a selection criterion or as a document to be submitted with the offer. TPRecup's offer contains no reservation, no conditional commitment, and no 'commitment to perform the contract without authorisation'. The fact that TPRecup will obtain the authorisation later — before the execution of that specific service — does not modify the offer and does not breach the equality principle. The pleas are not serious. Suspension refused.
Why does this matter?
Many sector-specific rules — environmental permits, transport authorisations, professional qualifications, safety inspections — are needed to perform a service legally. But that does not mean a bidder must already have them at the time of the offer. This ruling sharpens the distinction: unless regulation expressly requires it or the specifications explicitly include the authorisation as a selection criterion or document to submit, a contracting authority cannot declare an offer irregular because the bidder does not yet hold the permit. For bidders in niche sectors (waste, transport, healthcare) this gives breathing room: you can enter the market without all permits in place at the offer deadline, provided you have them by the time you perform the work that requires them. For contracting authorities in sectors where authorisation is critical: include it expressly in the specifications (selection criterion 'fitness to exercise the professional activity' under art. 71, 1° of the law — for example R.S.Z. authorisation in construction). If you do not, you cannot retroactively require the authorisation.
The lesson
As a contracting authority for a contract involving regulated activities (vidangeur, waste processor, sanitary installer, etc.): include the authorisation in the specifications as a selection criterion or document to submit. Base it on art. 66, paragraph 2 of the Awarding Royal Decree or art. 71, 1° of the law. If you do not, you must accept the authorisation at the time of execution, not at the time of the offer. As a bidder: read the specifications on authorisations — if the contracting authority does not expressly require them, you do not need to provide them with your offer, but make sure you have them before that service starts. And do not put any reservation in your offer such as 'subject to obtaining the authorisation'.
Ask yourself
Do your specifications, for services requiring legal authorisation or permit, contain an express reference under the selection criteria or the documents to submit? If not — you cannot rely in the award decision on the absence of that authorisation.
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 →