Rejection of suspension application for INFRABEL railway crane framework agreement: reliance on third-party capacity must be explicitly stated in ESPD and tender form — mere submission of subcontractor certificates is insufficient
The Council of State rejected the suspension application by NV R. against its non-selection for an INFRABEL framework agreement for hydraulic railway cranes, because NV R. had explicitly stated in its offer that it did not rely on third-party capacity, had not submitted any commitment declarations or ESPDs for subcontractors, and only three of the required four crane operators were own employees — the mere inclusion of six operator certificates being insufficient proof of reliance on subcontractor capacity.
What happened?
INFRABEL tendered a works framework agreement for hydraulic railway cranes in the Brussels Capital Region and HSL L1. Selection required minimum 4 approved cranes and 4 licensed operators. NV R. was not selected because fewer than 4 operators were own employees, it explicitly declared no reliance on third-party capacity in its ESPD and tender form, and submitted no commitment declarations or subcontractor ESPDs. The Council rejected all three grounds: (1) the UEA/ESPD issue didn't affect the determinative selection ground; (2) mere inclusion of 6 certificates didn't prove effective access to subcontractor capacity, and a 4th operator hired after the submission deadline couldn't be considered; (3) no duty of care required INFRABEL to allow correction when the bidder itself explicitly declared no third-party reliance.
Why does this matter?
This ruling clarifies that reliance on third-party capacity for selection criteria must be explicitly declared in the ESPD and tender form, with commitment declarations and subcontractor ESPDs attached. Selection criteria are assessed at the time of offer submission.
The lesson
When relying on subcontractor capacity for selection criteria, explicitly declare this in both the ESPD and tender form and attach all required documents. Ensure you meet selection criteria at the time of offer submission.
Ask yourself
Have you correctly declared reliance on third-party capacity in your ESPD and tender form? Have you attached all required commitment declarations and subcontractor ESPDs?
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 →