Suspension of sewer cleaning contract award: subcontracting agreement with ISO-certified subcontractor suffices as proof of reliance on third-party capacity — no formal requirements, missing date not fatal
The Council of State suspended the award by the City of Kortrijk of the sewer cleaning and inspection contract to NV D.B.S., because the exclusion of BV W.'s tender as substantially irregular was prima facie not supported by adequate grounds: the signed subcontracting agreement, in which the ISO 17025-certified subcontractor X committed to performing the relevant part of the contract, sufficed as proof of third-party capacity — the absence of a date and contract price was not fatal.
What happened?
The City of Kortrijk tendered a simplified negotiated procedure for sewer cleaning and inspection. A selection criterion required an ISO 17025 certificate for sewer inspections. BV W. did not hold the certificate itself but relied on subcontractor X, who did. BV W. attached a signed subcontracting agreement in which X committed to perform the ISO 17025 inspection work if BV W. was awarded the contract, along with X's ISO certificate. The agreement was not dated and contained no contract price. The authority declared the tender substantially irregular, arguing that no 'declaration' from X as required by the specifications was present. The Council found the ground serious: by signing the agreement, X committed to perform the relevant work and thus to make the necessary resources available. Under article 72 §1 of the Royal Decree, tenderers may use 'all appropriate means' to prove capacity. No formal requirements applied to the agreement. Moreover, the chosen tenderer's subcontractor had not submitted a formal capacity declaration either. The suspension was ordered.
Why does this matter?
This ruling clarifies that proof of reliance on a subcontractor's capacity is not subject to special formal requirements. A signed subcontracting agreement committing the subcontractor to perform the relevant work suffices — even without a date or contract price. The tenderer may use 'all appropriate means' under article 72 §1. The ruling also illustrates the equality principle: the same standard must apply to all tenderers.
The lesson
As a tenderer: always date your subcontracting agreements to avoid discussion, but a missing date is not fatal if the signed agreement is included with the tender. Ensure the agreement clearly commits the subcontractor to perform the specific part of the contract for which capacity is invoked. As a contracting authority: do not impose stricter formal requirements than what the specifications and regulations prescribe, and apply the same standard to all tenderers.
Ask yourself
As a tenderer: is your subcontracting agreement signed and does it contain a clear commitment to perform the relevant part of the contract? Is your subcontractor's certificate attached? As a contracting authority: have you applied the same standard for capacity proof to all tenderers?
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 →