Sewer inspection Kortrijk: suspension due to unjustified exclusion of tenderer proposing the same subcontractor as another tenderer
The Council of State suspends the non-selection of a tenderer for a sewer cleaning and inspection contract in Kortrijk, because no legal provision or specification prohibits a subcontractor from offering its services to multiple tenderers — the prohibition on multiple tenders (Article 54(2) of the Placement Royal Decree) applies to the tenderers themselves, not their subcontractors, even when the subcontracted work constitutes the core element of the contract.
What happened?
The City of Kortrijk tendered for sewer cleaning and inspection services for one year. The specifications required an ISO 17025 certificate for sewer investigation and expressly permitted subcontracting. The applicant (BV W.) relied on subcontractor X for the inspection work requiring the certificate. Another tenderer also relied on the same subcontractor X. The city excluded the applicant with a single ground: 'Two firms cannot rely on the capacity of [X].' The Council found no legal provision, principle, or specification clause prohibiting a subcontractor from offering services to multiple tenderers. The city's reliance on Article 54(2) (prohibition on multiple offers) failed: the tenderers are the main contractors, not the subcontractor. Each submitted only one offer. The subcontractor does not become a tenderer merely because it performs the 'priority' part of the contract. The city's additional arguments (invalid subcontracting agreement, irregular vehicles) were a posteriori motivations not found in the challenged decision. The Council cannot consider such post-hoc justifications. A second ground about contradictory contract duration provisions was not serious — the 'first' 12 months wording was likely a material error from template reuse. Suspension was ordered.
Why does this matter?
A subcontractor may offer services to multiple tenderers in the same procedure. The prohibition on multiple tenders applies to tenderers, not subcontractors. A subcontractor does not become a tenderer even when performing the core element. Authorities cannot invoke post-hoc justifications not contained in the challenged decision.
The lesson
As a contracting authority: a subcontractor may serve multiple tenderers. Do not exclude a tenderer because another uses the same subcontractor — there is no legal basis. Ensure all exclusion grounds appear in the decision itself. As a tenderer: you may propose the same subcontractor as a competitor. Include a signed commitment from the subcontractor. Challenge any exclusion on this ground.
Ask yourself
As a contracting authority: do you have a legal basis for excluding a tenderer using the same subcontractor as another? Are all grounds in the decision itself? As a tenderer: have you included a signed subcontractor commitment? Do you identify which parts will be subcontracted?
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 →