Rejection of extreme urgency suspension against award of renovation works at Hemptinne Barracks (Heverlee) via mini-competition under Defence framework agreement — mandatory site visit correctly verified via visit report — reliance on third party's capacity for contractor accreditation (category D, class 4) is permitted — accreditation does not expire automatically after five years but is subject to review
The Council of State rejected NV R.'s extreme urgency suspension claim against Defence's award of renovation works at Hemptinne Barracks (Heverlee) to BV G. via mini-competition under a framework agreement, as the mandatory site visit was correctly verified via the visit report, reliance on a third party's capacity (NV I.) for the required category D class 4 accreditation is permitted under the 2016 Act and 2017 Royal Decree, and the third party's accreditation had not automatically expired after five years but is merely subject to quinquennial review.
What happened?
Defence launched a mini-competition under a multi-year framework agreement for renovation works at Hemptinne Barracks in Heverlee (non-open procedure, price as sole criterion). Two tenders were received. BV G. held only class 2 accreditation and relied on NV I.'s capacity (class 7) for the required class 4 accreditation. NV R. challenged the award on two grounds: (1) the site visit was not addressed in the award decision; (2) the selection of BV G. was unlawful. The Council found the site visit was verified through the visit report and formal motivation need not address every regularity aspect when no issues arise. On selection, the Council held that Articles 78 of the 2016 Act and 73 of the 2017 Royal Decree permit reliance on third-party capacity for accreditation, the cited older case law was not applicable, and accreditation does not lapse automatically after five years under Article 18 of the 1991 Act.
Why does this matter?
This ruling clarifies that tenderers may rely on third-party capacity for contractor accreditation requirements, that accreditation does not automatically expire after five years but is subject to quinquennial review, and that formal motivation need not address every regularity aspect when no issues arise. It also confirms that older case law on the personal nature of accreditation is no longer applicable under current legislation.
The lesson
As a tenderer lacking the required accreditation class: you may rely on a third party's capacity under Article 78 of the 2016 Act, provided you include that party's commitment in your original tender. As a contracting authority: accreditation does not automatically lapse after five years — verify in Telemarc, but know the five-year period is merely the review interval. As a competing tenderer: the argument that reliance on third-party capacity for accreditation is not permitted finds no support in current legislation.
Ask yourself
As a tenderer: have you included the third party's commitment in your original tender? Does that third party hold current accreditation in the required category and class? As a contracting authority: have you included the site visit report in the administrative file? Have you verified accreditation validity?
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 →