You wrote in your own specifications that a third party must accept joint liability for financial capacity. Arguing on the day of the hearing that your own clause is illegal won't save you
Sibelga selects Illunis for lot 6 on the back of a French company's turnover (Rohl), but Rohl never signed a written acceptance of joint liability — even though Sibelga itself had required that acceptance in its selection dossier.
What happened?
Sibelga, the Brussels intermunicipal for gas and electricity, runs a tender for the supply of streetlight fixtures, divided into 15 lots. Fifteen candidates apply for lot 6; twelve are selected. Five submit a bid, including Signify, Illunis and Schreder. On 3 March 2026 Sibelga awards lot 6: Schreder as 'active awardee' (100%) and Illunis as 'reserve awardee' (0%). Signify, third in the ranking, files an extreme-urgency suspension. The selection criterion for lot 6 reads: 'An average annual turnover of at least €3 million over the last three financial years for the sale of LED streetlight fixtures delivered in Europe.' Illunis doesn't meet that threshold on its own and relies on the capacity of Rohl, a French family company from Erstein (Alsace) with an annual turnover of €11 to €16 million. Rohl filed a DUME and committed its resources to Illunis for the execution of the contract. Section 2.3 of Sibelga's selection dossier, applying article 78 of the 2016 Procurement Act, however reads: 'Where an economic operator relies on the capacities of other entities with regard to economic and financial capacity, the contracting authority requires that the operator and those entities be jointly liable for the execution of the contract. The candidate shall annex to its candidacy proof of the written acceptance by the entity whose capacity is being relied upon. Where this written acceptance is not provided, the candidate may not rely on the capacity of that entity.' At the hearing Sibelga has to admit: Illunis' candidacy contains no written acceptance of joint liability by Rohl. Rohl provided its production capacity and references — not its financial capacity, and certainly no joint liability. Sibelga tries to argue on the day that its own clause is in fact illegal because article 78 leaves a discretion to the authority, not an obligation. The Council brushes that aside: when approving the procurement documents, Sibelga itself chose to require joint liability and explicitly stated that without written acceptance the candidate cannot rely on the third party's capacity. Under the patere legem quam ipse fecisti principle, Sibelga is bound by its own rules. Illunis' selection is unlawful; that unlawfulness 'taints' the award decision that builds on the selection. As to the second plea — the regularity of Schreder's bid (non-conforming bracket arms) — the Council rejects the first two branches but finds a motivation defect in the evaluation report on the lawfulness of the winning bid. Suspension granted.
Why does this matter?
Article 78 of the Procurement Act gives the contracting authority a real choice: does it require joint liability from a third party whose financial capacity is relied upon, yes or no? Many specifications copy boilerplate without thinking. That is fine — until a candidate relies on a third party and the acceptance is missing. For bid managers this is crucial: if a competitor relies on a third party to meet a turnover threshold, check whether the candidacy contains (i) the written acceptance by that third party, (ii) one that specifically covers financial capacity, and (iii) an explicit acceptance of joint liability for the execution of the contract. If any of those three is missing while the specifications require it, the selection is vulnerable. For contracting authorities: write capacity-reliance clauses carefully and stick to them. Arguing at the hearing that your own specifications are unlawful never sounds good.
The lesson
If you write in your selection dossier that 'where written acceptance is not provided, the candidate may not rely on the capacity', then you have to apply that rule — even when the candidate otherwise looks perfectly suitable. If you want flexibility, delete the clause or rephrase it as an option rather than an obligation. And as a bid manager: for every competitor relying on a third party for turnover, check whether the acceptance is there and what exactly it covers.
Ask yourself
If a competitor reaches the turnover threshold through a third party: does the candidacy contain (i) a signature from that third party, (ii) an express reference to financial capacity (not just technical), and (iii) an explicit acceptance of joint liability for the execution of the contract? Three yeses = fine. One no = a possible suspension case.
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 →