Counsel of State, 17 November 2025, case 264.870, Belgium
Article(s) in Directive 2014/24/EU: 63
Topic: Reliance on third parties -subcontracting -selection
Member State: B
Court/rev. board: Council of State
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Art. 78 Belgian Procurement Law
2. FACTS
4 tenderers participated in a tender. The procuring authority eliminated one tenderer stating that his offer was null and void. “Investigation of the substantial irregularity: [the company W.] wishes to collaborate with [X] with regard to the visual inspection for which an ISO certificate is required. They do not have the relevant certificate themselves. This means that they must rely on the capacity of another company to meet the relevant selection criterion. However, no statement from the subcontractor [X] has been provided, as required by Article II.2 of the specifications, even though such a statement from the same subcontractor is included in the tender submitted by [the company D.V.]. This constitutes a substantial irregularity. The undated contract does not contain any confirmation that, in order to meet the selection criteria, recourse may be had to the resources of [X]. Taking the above into account, the board declares the tender submitted by [W. Ltd.] to be substantially irregular.
The tenderer who’s offer was declared irregular launched legal proceedings requesting suspension of the decision to award the contract.
3. JUDGMENT
The Council of State suspended this decision: At first glance, the defendant does not make it plausible, as it claims in the contested decision, that “the undated contract for services […] does not contain any confirmation that, in order to meet the selection criteria, recourse may be had to the resources of [X]”. If a subcontractor who has the required certificate undertakes to cooperate with the tenderer for the performance of this specific part of the contract, it appears to commit itself to making the necessary resources available for this purpose. At first glance, it does not appear to be necessary for that contract for services—which was attached to the tender—to be dated and to include a contract price.
