Submit a class-1 accreditation where class 2 is required, then ask whether the authority should have flagged it — that doesn't work
The Council of State rejects NV COS's extreme-urgency suspension against its non-selection for the renovation of the GC De Zandloper grandstand: the contract is indeed a works contract, and a bidder who supplies the wrong accreditation class without invoking article 3, first paragraph, 2° of the Accreditation Act cannot blame the authority for not asking.
What happened?
The Flemish Community issued an open procedure for the 'Renovation of the tribune GC De Zandloper' in Wemmel — the existing telescopic 369-seat tribune from 1999 plus accompanying works on entrance halls, control booth, floor covering, step lighting and electrical installation. The specifications (2022/HFB/OP/102103) classify the contract as a works contract under article 2, 18° of the Public Procurement Act 2016, with CPV codes 45212322-9 (Theatre construction) and — as supplementary code — 39111200-5 (theatre seating). The selection criteria require accreditation D20 or F2 — class 2. Three bidders submitted offers: NV COS, BV Cornet Seating Systems and NV Jezet Seating. NV COS only attached proof of accreditation F2-class 1, while the offer amount clearly exceeded the class-1 threshold. On 16 March 2023 the contract went to Cornet Seating Systems (€239,981.68 incl. VAT); NV COS was not selected. In its extreme-urgency action NV COS argued (1) the contract should be qualified as supplies (theatre seats) or repair-and-maintenance of furniture, not as works; and (2) the authority should have asked about its accreditation status, especially since it had meanwhile applied for class 3 (eventually granted on 13 April 2023). The Council ruled that the main object of the contract is indeed works on a building: the tribune has become immovable through incorporation or destination, and the works include electrical installation, joinery, floor finishing and painting — all activities expressly listed in annex I to the Public Procurement Act 2016. The CPV code 'theatre seats' was correctly registered as a supplementary, not main, code. On the second plea: article 70, §1, second paragraph, 3° of the Royal Decree on Procurement 2017 expressly allows a bidder to invoke the application of article 3, first paragraph, 2° of the Accreditation Act in their offer (proving they meet the conditions for accreditation). NV COS did not invoke that provision, did not inform the Flemish Community of its pending application, and only relied on article 3 for the first time in its application before the Council. The authority is not obliged under article 66, §3 to request supplementary information — certainly not when the bidder has been negligent. Neither plea is serious. Suspension rejected.
Why does this matter?
Renovation and maintenance contracts where furniture, technical installations and structural finishing converge sit on the borderline between works and supplies/services. Qualification has direct consequences: only for works does the accreditation regime apply. Bidders hoping to escape the accreditation requirement via a 'supplies qualification' must realise that the main object decides — not one isolated supplementary CPV code. And those who themselves drop the ball by attaching the wrong class cannot afterwards blame the authority for not 'asking whether it was correct'. Article 66, §3 is a possibility for the authority, not an obligation — and the threshold for converting that 'may' into a 'must' is very high, especially when the bidder was negligent.
The lesson
If you submit a works offer and attach proof of accreditation, check two things before submitting. One: is your offer amount below the threshold for your class? Two: if not, either attach proof of a higher class, or — if you know you don't yet formally have it — explicitly invoke the application of article 3, first paragraph, 2° of the Accreditation Act (and provide proof that you meet the conditions). Forget either, and you've engineered your own non-selection. As an authority: you may proceed without inquiry if the bidder did not invoke article 3, first paragraph, 2° themselves — but know the law also gives you the option to request additional information.
Ask yourself
If you submit a works offer and your offer amount exceeds the threshold for your current accreditation class: have you explicitly invoked article 3, first paragraph, 2° of the Accreditation Act in your offer, with supporting documents? If not, fix it before the opening date.
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 →