Council of State suspends award of asbestos removal works — SPF Employment approval for asbestos removal cannot replace SPW approval as collector of hazardous waste
The Council of State orders suspension of the University of Mons' decision to award an asbestos removal works contract to RE.DE.CO., because the four highest-ranked tenderers did not hold the approval required by the specifications (SPW approval as collector of hazardous waste), having produced an SPF Employment approval for asbestos removal — a different approval for which no equivalence was announced — and having furthermore ticked 'No' on the ESPD regarding reliance on the capacity of other entities.
What happened?
The University of Mons launched a public works contract for asbestos removal at the Chaville VI building. The estimated amount was EUR 300,000 excluding VAT, below European thresholds. The procedure was open and published nationally. The specifications required, as a technical capacity criterion, an 'approval from the Service public de Wallonie as collector of hazardous waste'. Two award criteria were provided: price (70 points) and encapsulation paint methodology (30 points). Six tenderers submitted offers: Valens, Caro Maintenance, SBMI, RE.DE.CO., Laurenty and VSS. UMons selected all tenderers. RE.DE.CO.'s offer, being the lowest, was ranked first and the contract was awarded to it on 19 January 2024. As the contract was below European thresholds with no voluntary standstill period, it was directly concluded with RE.DE.CO. SA SBMI, ranked fifth, filed for suspension under extreme urgency. It raised a first plea alleging violation of the specifications' qualitative selection requirements. According to SBMI, the technical selection criterion specifically required an SPW approval as collector of hazardous waste. The four tenderers ranked above it had not produced this approval. They had submitted two different documents: on one hand an approval for the transport of hazardous waste, and on the other a ministerial decree from SPF Employment, Labour and Social Dialogue authorising asbestos demolition and removal works. The respondent argued that the contract encompasses collection, transport and demolition and removal works for asbestos, and that all tenderers hold, either directly or through subcontractors, all necessary approvals for contract execution. The Council of State found that the specifications specifically required an SPW approval as collector of hazardous waste, without any mention of equivalence with other approvals. The SPF Employment approval for asbestos removal, issued under federal workplace well-being legislation, is a different approval that cannot be confused with the approval required under Walloon waste legislation. The contracting authority could not, without violating the specifications, accept a different approval than the one required. Furthermore, each of the four tenderers concerned ticked 'No' on the European Single Procurement Document (ESPD) in response to the question about reliance on the capacity of other entities to meet selection criteria. They therefore could not, prima facie, rely on their subcontractors' approvals to meet the technical selection criterion. The plea was serious. The balance of interests did not preclude suspension. Suspension of the award decision was ordered.
Why does this matter?
This ruling recalls the strict obligation to apply selection criteria as set out in the procurement documents. Two main lessons emerge. First, when the specifications require a specific approval (here an SPW approval as collector of hazardous waste), the contracting authority cannot accept a different approval (here an SPF Employment approval for asbestos removal) if the procurement documents did not provide for equivalence. The contracting authority cannot modify selection conditions after the fact. Second, a tenderer who ticks 'No' on the ESPD regarding reliance on third-party capacity cannot subsequently rely on its subcontractors' approvals to satisfy the qualitative selection criteria.
The lesson
When specifications require a specific approval as a technical capacity criterion, the contracting authority must apply this requirement strictly and cannot substitute a different approval, however relevant it may be for contract execution, if no equivalence was announced. If it wishes to accept other credentials, it must provide for this when drafting the specifications. Furthermore, a tenderer who declares in the ESPD that it does not rely on third-party capacity cannot invoke its subcontractors' approvals to meet selection criteria.
Ask yourself
As contracting authority: when I require a specific approval as a technical selection criterion, have I provided for the possibility of accepting equivalent approvals, and if so, have I stated this in the procurement documents? Have I verified that tenderers personally hold the required approval, or that those relying on third-party capacity have correctly declared this in the ESPD? As tenderer: have I properly verified whether I personally hold the approval required by the specifications? If I rely on a subcontractor for this approval, have I ticked 'Yes' to the question about reliance on third-party capacity in the ESPD and provided the required evidence of commitment?
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 →