Not every business has all the references, certificates or financial capacity a tender requires. In that case, the legislation offers two options: you submit as a combination (temporary association or consortium) with other operators, or you rely on the capacity of third parties. Both routes are legally permitted but require careful documentation and clear agreements.
Reliance on the capacity of third parties
Article 73 of the Belgian Act of 17 June 2016 allows a tenderer to rely on the capacity of other entities to meet selection criteria. This applies to both financial and economic standing and technical and professional ability.
What can you ‘borrow’?
Financial standing. If the specifications require a minimum turnover or solvency ratio you do not meet, you can invoke the financial capacity of a parent company, sister company or other entity. Condition: that entity must also effectively guarantee the execution.
Technical ability. References, staff qualifications, technical equipment — you can deploy a third party’s resources if you demonstrate they are effectively available during execution.
Contractor qualification. For works contracts in Belgium, qualification is personal. You can invoke a third party’s qualification if that third party will effectively execute the works requiring the qualification, as subcontractor or combination member.
What must you prove?
The tenderer must demonstrate actual availability of the third party’s resources. In practice this means:
- A commitment declaration from the third party, confirming it makes its resources available for the contract execution.
- Evidence that the third party meets the selection criteria for which it is invoked (for example an ESPD from the third party).
- Evidence that the third party itself is not subject to exclusion grounds.
The authority verifies these documents and may reject the reliance if the resources are not genuinely available or if the third party falls under an exclusion ground.
Joint and several liability
If a tenderer relies on a third party’s financial standing, the authority may require that the tenderer and the third party are jointly and severally liable for the contract execution. This means the authority can hold both parties responsible for the full execution — not just the part delivered by the third party.
Combinations: temporary association and consortium
A combination is a partnership of two or more operators who jointly tender for a contract. In Belgium, the usual legal form is the temporary association (société momentanée / tijdelijke maatschap).
Legal structure
A temporary association has no legal personality. The members are individually and jointly liable to the authority. This means that if one partner defaults, the other partner(s) can be held responsible for the whole.
The authority may not prohibit combinations as such. The law prohibits requiring a combination to adopt a specific legal form before submission. However, the authority may require the combination to adopt a certain legal form after award if necessary for proper execution.
Which documents do you need?
Before submission: a cooperation agreement (Letter of Intent or full agreement) defining roles, each partner’s share, the lead partner, and governance; an ESPD per partner; and evidence per partner for the selection criteria they contribute to.
After award: a definitive cooperation agreement with rights, obligations, financial arrangements, dispute resolution and exit clauses; surety contributions in proportion to each member’s share.
Role allocation and lead partner
The authority typically communicates with one contact point: the lead partner. This partner coordinates the submission, signs on behalf of the combination and serves as primary contact. But legally all partners are jointly liable — the lead partner has no special protection.
Difference with subcontracting
With reliance on third parties or a combination, the involved parties are visible to the authority and their qualifications are assessed. With subcontracting, the relationship is primarily between the contractor and its subcontractor, although the authority has the right to request information about subcontractors.
The essential difference: a combination member or relied-upon third party is assessed at selection level. A subcontractor typically is not (unless the specifications explicitly require it for critical tasks).
Strategic considerations
Choose your partners early. Assembling a combination or finding a suitable third party takes time. Do not wait until the deadline approaches.
Put agreements in writing. A verbal arrangement about role allocation is worthless in a dispute. Document who does what, who bears which risk, and what happens if a partner drops out.
Check your partners’ exclusion grounds. If a combination member or third party falls under an exclusion ground, the entire submission can be excluded. Actively verify this.
Be consistent in the ESPD. The capacity you claim in the ESPD based on a third party must correspond to the commitment declaration and evidence from that third party. Inconsistencies lead to questions or exclusion.