Subcontracting in Belgian public procurement
In Belgium, a contractor that subcontracts remains solely liable to the buyer, with no link between the buyer and the subcontractor (royal decree of 14 January 2013, art. 12). For works and other fraud-sensitive sectors, it reports all its subcontractors when performance starts, and the chain is limited to two or three levels.
Updated
In Belgium, a contractor that entrusts part of the contract to subcontractors remains solely liable to the buyer (royal decree of 14 January 2013, art. 12). In a fraud-sensitive sector, it reports all its subcontractors and the chain is limited to two or three levels (art. 12/1 and 12/3).
The rule: the contractor stays solely liable
Article 12, § 1, of the royal decree of 14 January 2013 (general rules for performance) says that entrusting all or part of its commitments to subcontractors does not release the contractor from its liability to the contracting entity. The contracting entity has no contractual link with those third parties. Consolidated text, in French, read on Wallex on 28 October 2026: Royal decree of 14 January 2013, consolidated text (Wallex, French)
Article 13 forbids entrusting all or part of the contract to an excluded company, in particular one under an exclusion ground of article 67 of the law of 17 June 2016, unless it shows sufficient measures to prove its reliability (article 70 of the law). The law as a whole: Guide to the law of 17 June 2016
In the tender: named subcontractors or borrowed capacity
The royal decree of 18 April 2017 separates two cases. The table sets out what its articles 73 and 74 say, and what follows during performance under article 12 of the royal decree of 14 January 2013. Text, in French: Royal decree of 18 April 2017, consolidated text (Wallex, French)
| Case | What the text says | During performance |
|---|---|---|
| The tenderer relies on a subcontractor’s capacity to be selected | It names the subcontractor and the share concerned, in the tender or already in the request to participate; it answers part II, C, of the ESPD where one is required (RD 18 April 2017, art. 73) | For educational and professional qualifications or experience, it must use that subcontractor; another one needs the buyer’s prior authorisation (RD 14 January 2013, art. 12, § 2) |
| The tenderer subcontracts without relying on capacity | The buyer may ask, in the procurement documents, which share it intends to subcontract and which subcontractors it proposes (RD 18 April 2017, art. 74) | As a rule it may only use the subcontractors proposed, unless the buyer authorises another or asked for a replacement because of exclusion (RD 14 January 2013, art. 12, § 3) |
Fraud-sensitive sector: list and limited chain
Article 2, 25°, covers every works contract and some service contracts linked to joint liability for wage debts (article 35/1 of the law of 12 April 1965). In those contracts, article 12/1 requires the contractor to give, at the latest when performance starts, the name, contact details and legal representatives of all subcontractors in the chain, as far as they are known, then to report without delay any change and any new subcontractor. In other contracts the buyer may ask for the same information.
Above the European publicity thresholds, the procurement documents may require that information in the form of a fully completed ESPD: ESPD
Article 12/3, § 1, forbids a subcontractor to subcontract the whole of what it was given, or to keep only the coordination. Paragraph 2 limits the chain: three levels for works in an accreditation category, two for works in a sub-category and for services in a fraud-sensitive sector. One more level is possible for unforeseeable circumstances reported in writing to the buyer within thirty days, or with its prior written consent; for works, the request for consent includes proof of the subcontractor’s accreditation.
Not subcontractors for that rule: members of a grouping without legal personality, including temporary partnerships; suppliers of goods without placing or installation; inspection or certification bodies; temporary work agencies. A breach of the article leads to a daily penalty of 0.2% of the initial contract amount, from the fifteenth day after the dispatch provided for in article 44, § 2, capped at 5,000 euros a day below 10,000,000 euros and at 10,000 euros a day above.
Checking subcontractors’ exclusion grounds
Article 12/2, § 1, lets the contracting authority check the exclusion grounds of articles 67 to 69 of the law for direct subcontractors. In a fraud-sensitive sector above the European thresholds, it must do so without delay once it receives the list under article 12/1. Paragraph 2 allows the same check further down the chain.
The finding and the request for replacement are set out in an official report. The contractor has fifteen days after it is sent to prove the replacement; during that period, settling social or tax debts and corrective measures remain possible. During performance, a subcontractor may settle its social and tax debts only once. Without replacement, the same daily penalty of 0.2% applies (article 12/2, § 4).
Article 12/4 lets the buyer require subcontractors, wherever they are in the chain and in proportion to their share, to meet the minimum technical and professional capacity requirements of the procurement documents.
Payment and direct claim
Article 15 requires the contractor to inform each subcontractor, when its contract is concluded, of the payment terms of the contract; the subcontractor may rely on them against the contractor to be paid. For a works contract, article 12, § 4, requires the buyer to state in the procurement documents the subcontractor’s direct claim under article 1798 of the Civil Code.
What an SME checks before replying
These points are read in the notice and the procurement documents; the royal decree sets the frame, the tender specification says what applies to the contract.
- Look in the tender specification for whether the subcontracted share and the subcontractors must be stated in the tender: Tender specification
- If you borrow a subcontractor’s capacity for selection, attach its commitment and name it for the share concerned; you will then work with it.
- For works or a service in a fraud-sensitive sector, prepare the full list of subcontractors to hand over at the latest when performance starts, and count the levels of the chain.
- For works, check the accreditation of the subcontractors concerned.
- Check that no subcontractor falls under an exclusion ground, social and tax debts included.
- A question on subcontracting goes to the buyer before the deadline: Question to the buyer
What AOEX does and does not do
The AOEX page for a TED notice repeats the statements TED publishes, as worded. The tender kit reads the published documents and dictates the fields of the reply: Tender kit The term is also in the glossary: Glossary
AOEX does not submit the tender, does not contact the buyer and does not say who will be chosen. This page is not legal advice. The text to follow remains the latest official notice and the procurement documents.
Frequently asked questions
Is the contractor liable for its subcontractors’ work?
Yes. Article 12, § 1, of the royal decree of 14 January 2013 says that entrusting all or part of its commitments to subcontractors does not release the contractor from its liability to the contracting entity. The contracting entity has no contractual link with those subcontractors.
Do I have to name my subcontractors in the tender?
Only if the procurement documents ask, or if you rely on their capacity for selection. Article 74 of the royal decree of 18 April 2017 lets the buyer ask which share you intend to subcontract and which subcontractors you propose. Those named are, as a rule, the only ones you may use (art. 12, § 3, of the royal decree of 14 January 2013).
What is a fraud-sensitive sector?
Article 2, 25°, of the royal decree of 14 January 2013 covers every works contract, and service contracts awarded for the activities referred to in article 35/1 of the law of 12 April 1965 on the protection of pay, which fall under joint liability for wage debts.
How many levels of subcontracting are allowed?
In a fraud-sensitive sector, article 12/3, § 2, limits the chain to three levels for works in an accreditation category, and to two levels for works in a sub-category and for services. One more level remains possible for unforeseeable circumstances reported in writing within thirty days, or with the buyer’s prior written consent.
What if a subcontractor falls under an exclusion ground?
Article 12/2 lets the buyer check the exclusion grounds of direct subcontractors, and further down the chain. It then asks for replacement in an official report; the contractor has fifteen days to prove the replacement. Otherwise a daily penalty of 0.2% of the initial contract amount applies, capped at 5,000 euros a day below 10,000,000 euros and 10,000 euros a day above.
Does AOEX show the subcontracting rules of a TED notice?
Where the TED notice publishes a statement on subcontracting, the AOEX page repeats it as worded. An unpublished statement stays unpublished. The requirements of a given contract are in the tender specification. AOEX does not submit the tender and does not contact the buyer.
Sources
Royal decree of 14 January 2013 laying down the general rules for the performance of public contracts, articles 2, 25°, 12 to 12/4, 13 and 15, consolidated text in French read on Wallex on 28 October 2026: Royal decree of 14 January 2013, consolidated text (Wallex, French) Justel: Royal decree of 14 January 2013 (Justel, French) Royal decree of 18 April 2017, articles 73 and 74: Royal decree of 18 April 2017, consolidated text (Wallex, French) Justel: Royal decree of 18 April 2017 (Justel, French)
This note describes public documents and how AOEX works. It is not legal advice.
Edited by aoex.
