A temporary association with 'two class-5 accreditations' doesn't automatically reach class 6: main category D and subcategory D1 don't add up
The Council of State suspends an ILVO award of €3.78M for the construction of poultry research barns because one of the two joint venture partners was only accredited in subcategory D1 — not in main category D — which breaks the 'add-up' rule of article 11 §2 of the Act of 20 March 1991.
What happened?
On 18 January 2024, the Own Resources of the Institute for Agricultural and Fisheries Research (ILVO) in Ghent publishes an open tender for the construction of a new poultry complex for scientific research. The specifications require class D, class 7 accreditation (possibly class 6 depending on the offer amount). Two bidders apply: the temporary association Vanloot bv – D'Haene bv at €3,569,629 excl. VAT, and Van De Walle Industrial Building Contractor at €4,264,906 excl. VAT. Vanloot-D'Haene is the lowest bidder but faces a problem: neither partner individually holds the required accreditation. The award report states 'Each member of the association holds class 5' and invokes article 11 §2 of the Act of 20 March 1991: if two partners are accredited in the same class and category, the joint venture is deemed accredited in the next class up. So 5+5 = class 6. There's also a second trick: ILVO waits with the award until after 1 June 2024, the entry-into-force date of the Royal Decree of 14 April 2024 that raises the maximum amounts per class by 20% — making class 6 sufficient for a €3.78M offer. On 5 July 2024, ILVO awards to Vanloot-D'Haene. Van De Walle files an extreme urgency application on 22 July. The Council of State suspends on 13 August 2024. On the waiting strategy the Council is lenient: accreditation conditions must be met at the moment of award, so legislative changes between offer opening and award can count. But on article 11 §2 the Council is scathing. The administrative file and the public Accredited Contractors Database show that D.K. is not accredited in category D but in subcategory D1, class 5. Article 5 §2 of the Royal Decree of 26 September 1991 explicitly states that accreditation in a category does not automatically entail accreditation in its subcategories — and vice versa. Category D and subcategory D1 are not interchangeable. The award report mentions D1 nowhere, let alone motivates why D1 would suffice for a project that explicitly requires D and is broader than just shell construction.
Why does this matter?
This judgment touches a common theme with temporary associations and subcontracting in construction: the alleged 'addition' of accreditations. Contractors often think they can team up to reach a higher class, but article 11 §2 conditions are strict — both partners must be accredited in the SAME class and the SAME category (or subcategory). A mix of D and D1 does not work. For bid managers in construction considering teaming: check accreditations in the public database before signing. For contracting authorities: when a joint venture invokes article 11 §2, check concretely in which category/subcategory/class each partner is actually accredited — and document that finding in your award report.
The lesson
As a temporary association invoking the 'addition' rule of article 11 §2 to reach class 6 from two class-5 accreditations: first verify that both partners are accredited in the exact same category or subcategory. Main category D is not the same as subcategory D1 — the FPS Economy database makes that clear. As contracting authority: in your award report, for each partner separately, state the exact category or subcategory and class, and motivate why the addition is valid.
Ask yourself
You award to a joint venture based on the addition rule of article 11 §2: does your award report state, for each partner separately, (a) the exact accreditation category or subcategory and (b) the class? If you see one partner accredited in a subcategory (D1, D4, D13…) and the other in a main category (D, G, H…): the addition doesn't hold. Find another basis or reject the offer.
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 →