Asbestos removal authorisation? You can't 'borrow' it from a subcontractor
The Council of State suspends the award of a demolition contract because the winning bidder lacked the required asbestos removal authorisation, which — classified in the tender documents as a 'suitability to pursue the professional activity' requirement — cannot prima facie be satisfied through reliance on a subcontractor's capacity.
What happened?
The Flemish Brabant Regional Development Agency (POM) launched an open procedure for demolition and remediation works on the former Exide site at Huldenberg (Florivalsite). Sole award criterion: cost-effectiveness (effectively the bid price). The tender specifications required two authorisations on the cover page: contractor category G5 class 5 AND an 'asbestos removal authorisation'. Both were placed under section 7.1 — 'Suitability to pursue the professional activity' — as a selection criterion. The applicants (a temporary partnership of Afbraakwerken Van Kempen / BAV) had specifically formed a combination including an authorised asbestos removal partner to meet this requirement. Hens nv, the winning bidder, did not hold the authorisation itself — it relied on the capacity of subcontractor A. After an initial award to Hens (15 December 2023) and a Van Kempen emergency suspension action, POM withdrew its decision (22 March 2024), revised the award report and re-awarded to Hens on the same basis. Van Kempen brought a second emergency action. The crux: Article 78, first paragraph of the 2016 Public Procurement Act expressly allows reliance on third-party capacity for the criteria in Article 71, 2° (economic and financial capacity) and 71, 3° (technical and professional ability) — but is silent on 71, 1° (suitability to pursue the professional activity). Article 73, §1 of the 2017 Royal Decree on Placement is even clearer: reliance is possible 'with regard to the criteria in article 67 [financial] and articles 68 and 70 [technical]'. Not, therefore, for article 71, 1°. POM tried to soften its classification after the fact ('we did not intend to exclude subcontracting') and Hens argued that asbestos authorisation is really a technical-ability requirement. The Council of State dismisses both arguments prima facie: under patere legem quam ipse fecisti the contracting authority is bound by its own classification in the specifications. Moreover, the asbestos removal authorisation (Royal Decree of 28 March 2007, now book VI title 4 of the Wellbeing Code) is legally required to carry out the works at all — therefore genuinely a matter of professional suitability, not merely technical know-how. The emergency suspension is granted.
Why does this matter?
For contracts involving legally prescribed authorisations — asbestos removal, soil remediation, archaeological investigation, specialised electrical installations, certain healthcare services — it matters enormously whether you place that authorisation under 'suitability' (art. 71, 1°) or 'technical ability' (art. 71, 3°). Under 3° you can rely on a subcontractor; under 1° you cannot. It looks like a legal detail, but it explains why serious bidders go to the trouble of forming a combination with an authorised partner — and why winning competitors who quickly 'add a subcontractor' can trip over their own tender design choices. For contracting authorities the warning is twofold: (1) classify every selection criterion deliberately, because you are bound by it; (2) if you want to allow subcontracting for a specific requirement, don't place it under 7.1.
The lesson
If you're a contracting authority including a legally prescribed authorisation in your tender: decide deliberately where to place it. Under 'Suitability to pursue the professional activity' (art. 71, 1°) you effectively exclude subcontracting — bidders who lack the authorisation themselves must form a combination with an authorised partner. Under 'Technical and professional ability' (art. 71, 3°) subcontracting remains possible. And as a bidder: ALWAYS check under which section of the tender documents an authorisation is listed before deciding whether to use a subcontractor or form a combination. The cheaper 'subcontractor' route does not work for suitability criteria.
Ask yourself
Is there a legally prescribed authorisation under section 7.1 (suitability for the professional activity) in your tender documents? Then make sure your award report shows that the winning bidder holds that authorisation itself — or is part of a combination one of whose members is authorised. 'Relies on subcontractor's capacity' is NOT a valid justification for art. 71, 1° criteria.
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 →