If your tender allows subcontracting and the bidder names Bpost as subcontractor, you cannot reject them with 'you don't have the BIPT licence'
The Council of State annuls the award of Defence's multi-year postal services contract to Bpost because Postalia Belgium's offer was declared irregular for lacking a BIPT licence, while that offer explicitly designated Bpost as subcontractor for distribution — a possibility the tender itself expressly allowed.
What happened?
The Belgian Ministry of Defence launched an open four-year framework agreement for national and international postal services (universal and non-universal), through an open procedure published nationally and EU-wide. Annex C (Logistics and technical specifications) listed as [I] requirement — essential, on pain of exclusion — that 'the bidder meets the legal requirements and holds the necessary licence for the full service of universal post handling under BIPT guidelines'. Annex A asked the licence as an attachment to the offer. At the same time, section 6.l explicitly allowed subcontracting, provided the offer mentioned the part to be subcontracted and the proposed subcontractors. Two bidders responded: Bpost and Postalia Belgium. In its offer form, Postalia declared that the 'Distribution' part would be subcontracted to Bpost, added a commentary at item 1.2 of annex C, and attached a (unsigned) ESPD on behalf of Bpost as subcontractor with annexes. In the award report of 29 November 2019, Postalia's offer was declared irregular with the motivation: 'Postalia Belgium bvba does not hold a BIPT licence to send universal post' and 'Postalia Belgium bvba does not hold the necessary licence for the full service of universal post handling.' On 13 December 2019 the contract went to Bpost; on 23 December 2019 Postalia received a registered letter whose only motivation read: 'You do not hold the required licence under BIPT guidelines as requested in Annex A of the tender.' Postalia went to the Council of State. The first ground — that the BIPT requirement was an unlawful selection criterion — was rejected: the tender did not require the bidder itself to hold the licence and did not exclude subcontracting. The second ground succeeded: the contested motivation entirely ignored the fact that Postalia had explicitly designated Bpost as subcontractor for distribution. Nowhere in the award report, the award decision or the rejection letter was that proposed subcontracting addressed. Defence's a posteriori arguments in its observations — that the cooperation with Bpost was not credible, that the ESPDs contradicted each other, that the ESPD for Bpost was unsigned — appeared in no document of the administrative file and could not cure the defective motivation, 'at the risk of hollowing out the duty to state reasons entirely'. The award was annulled with costs.
Why does this matter?
Two structural takeaways. First: technical [I] requirements referring to a licence or accreditation do not automatically exclude subcontracting. Unless the tender expressly states that the bidder itself must comply, a bidder may meet a licence requirement through subcontracting. For sectors with strong incumbents and few licence holders (postal services, telecom, regulated professions), this matters greatly for competition — otherwise only the licence holder would be able to bid. Second: if a bidder names a subcontractor to meet a requirement, the contracting authority must explicitly assess that in its award report. It is not enough to merely state that 'the bidder lacks the licence' — you must explain why the proposed subcontracting is not acceptable (no signed ESPD, contradictory documents, lack of genuine cooperation, etc.). If you do not do so in the motivation itself, your decision is vulnerable — and post factum explanations in observations will not save you.
The lesson
Does your tender contain an [I] requirement referring to a licence or accreditation? Then your award report must explicitly assess, for every bidder that does not hold the licence itself, whether subcontracting fulfils the requirement. If you reject an offer on that ground, mention at minimum: (1) is a subcontractor proposed, (2) why the proposed construction is insufficient (formal defects, lack of genuine cooperation, missing ESPD, etc.). A bare 'you do not hold the licence' is not a motivation when the bidder clearly relies on subcontracting.
Ask yourself
Are you declaring an offer irregular for lack of a licence or accreditation while the bidder names a subcontractor or third-party entity to meet that requirement? Your motivation must address that proposed construction. Threshold: if your rejection letter or award report does not contain the word 'subcontractor' while the offer proposes one, your motivation is almost certainly inadequate.
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 →