Round two for the ORES aerial platforms: after the suspended selection the intercommunal company redid the exercise, and this time Comet’s exclusion holds
After the Council of State suspended ORES Assets’ first selection decision on 4 May 2026 and the intercommunal company withdrew it, Comet Belgium again failed the qualitative selection on re-examination — its third reference turned out to consist of two separate contracts worth 3,153,081 euros together, in which it neither supplied the vehicles nor maintained them — and the Council rejects its three pleas on third-party capacity, the absence of lots and an alleged arrangement between the two selected candidates.
What happened?
On 17 December 2025 the board of the intercommunal company ORES Assets decided to launch a framework agreement for the supply of utility vehicles fitted with a mobile elevating work platform (MEWP), including maintenance of the whole, through a negotiated procedure with prior call for competition under article 117, § 1, 3° of the Law of 17 June 2016. The contract notice was sent on 19 December 2025: a maximum duration of eight years, a maximum value of 75 million euros and no more than three candidates to be invited to tender. The participation form set out three selection criteria, eleven annexes to complete and a ranking method in case more than three valid applications came in. Five undertakings applied: Comet Belgium, France Élévateur Benelux, HDW Belux, Mondia Klubb Group and Renault Trucks Belux. On 18 March 2026 the board selected the first three; Comet and Renault Trucks fell away because, although they met all three criteria, they were not ranked in a useful position. By judgment no. 266.578 of 4 May 2026 the Council of State suspended that decision for failure to state reasons: the file showed that Mondia Klubb Group’s references came not from SAS Klubb Group but from SASU Klubb France — 471 of the 475 references for the first criterion and all seven for the second — while that company had produced neither a commitment letter nor exclusion certificates, and because in the ‘administrative analysis table’ the entries ‘hors porteur’ had been replaced by ‘+ porteur’ without any explanation. On 20 May 2026 ORES withdrew its decision of 18 March, re-examined all applications and put questions to the candidates, except Mondia Klubb Group. The new selection sheet of 16 June 2026 led to the decision of 17 June 2026: France Élévateur Benelux and HDW Belux selected, Mondia Klubb Group and Comet Belgium not, and formal note taken of Renault Trucks’ withdrawal. For Comet everything turned on its third reference for the second selection criterion, which required three all-in contracts of at least 4 million euros excluding VAT each, performed between 2020 and 2025, together worth at least 15 million euros. That third reference named as client both a contracting entity (Resa) and two economic operators (Renault and J&T Autolease). Comet’s own answer showed that this was not one contract but two separate ones, concluded by Resa with Renault Finance for lot 1 and with J&T Autolease for lot 2, in which Comet was merely a supplier and therefore not the contractor; that the cumulative amount of its own share was 3,153,081 euros excluding VAT, below the 4-million threshold per contract; and that for that reference it had neither supplied the utility vehicles nor maintained them, so that the maintenance did not cover the whole and the contract was not ‘all in’. Comet did not itself dispute those reasons. In its first plea it turned on the two selected candidates: the signatures on their commitment letters had allegedly not been properly verified, the commitments were not effective, and the ESPD did not state for which part of the contract third-party capacity was relied on. The Council did not follow. For HDW Belux the signature of the Danish company Versalift DK had been verified against the Danish Business Authority extract, showing that the signatory is a director and can bind the company alone. For France Élévateur Benelux the signatory is the president of SAS FE Group, which is itself president of SAS France Élévateur; article L227-6 of the French Commercial Code provides that an SAS is represented towards third parties by its president with the widest powers, and that statutory limitations are not enforceable against third parties — that he described himself only as managing director is prima facie immaterial. On the effectiveness of the commitments, the Council recalled the heart of the scheme: a candidate may invoke a third party’s references only if that third party effectively undertakes to make its resources available for performance; without such an undertaking those references do not count. Here Versalift DK undertook for the supply of vehicles with electrically powered MEWPs and France Élévateur for every aspect — supply, maintenance of the whole and COP certification. Because the declarations contained no reservation, the commitment had to be regarded as maximal for the aspect concerned. The criticism about the ESPD failed in law: article 72, § 3 of the Royal Decree of 18 June 2017 does not require the ESPD itself to state the part of the contract, and the ESPD template provides no box for it. The Council also referred to the Court of Justice’s Borta judgment (5 April 2017, C-298/15), from which it follows that an operator’s contribution to the required professional capacity need not, as a rule, correspond proportionally to the share of the work it will actually perform. The complaint of unequal treatment also failed: ORES asked Comet more specific questions because its third reference named three different entities, whereas the other two listed a single client per reference; Comet was equally not questioned about its first two references, each with one client, and those two were found sufficient. In its second plea Comet attacked the decision not to divide the contract into lots, combined with a demanding second selection criterion. The Council found that article 58, § 1 of the Law of 17 June 2016 does not apply in the special sectors and that article 137, the provision that does apply, imposes no duty to consider division into lots or to give reasons for choosing against it; the preparatory works confirm this expressly. The purchasing-strategy sheet did in fact contain reasons: a single point of contact, an in-house engineering department, interchangeability of spare parts, replacement vehicles at the contractor’s expense and a communication platform for tracking interventions. Decisive were the ‘historical reasons’: under an earlier contract ORES purchased the bare trucks and the platform superstructure separately, which led to court proceedings against Comet; the court-appointed expert concluded that this split was technically riskier and had contributed to numerous defects, with the parties blaming one another and ORES suffering a proven loss of use. The Council acknowledged that not dividing into lots makes access harder for SMEs, but saw no prima facie illegality. The level of the second criterion also survived scrutiny: three all-in contracts of at least 4 million euros each over six years, together 15 million, against a contract estimated at 8,480,000 euros a year for the first two years and 4,240,000 euros a year thereafter — the required cumulative figure amounts to 34 per cent of the total value, or 44 per cent of the value estimated over the first six years. Unlike in judgment no. 256.952 of 28 June 2023, invoked by Comet, ORES did not require a volume achieved with one and the same client: the three references may come from different clients. The claim that such references are hard to find on the Belgian market was supported by no evidence, while the contract lies far above the European thresholds and the two selected candidates — which describe themselves as SMEs in their ESPD — met the criteria precisely by relying on the capacity of a Danish and a French company. The third plea, about a possible arrangement between the two selected candidates, failed as well: that Versalift and France Élévateur belong to the same Time Manufacturing Company group does not make HDW Belux and France Élévateur Benelux linked companies, nor does the status of official distributor, and the two candidates submitted different references. The request for suspension was rejected, immediate enforcement of the judgment ordered, documents A to M kept confidential and Comet ordered to pay the roll fee of 200 euros, the contribution of 26 euros and a procedural indemnity of 770 euros to ORES. In so far as the action was directed against ‘the possible decision to award the framework agreement to another candidate’, it was inadmissible: that decision did not yet exist.
Why does this matter?
This is the sequel to judgment no. 266.578 and shows what a successful suspension is worth — and what it is not. Comet won in May on the statement of reasons, ORES withdrew its decision and redid the work; three months later Comet is out again, this time on grounds it does not itself contest. Overturning a selection decision for defective reasoning buys time and a second reading, not a place on the shortlist. Substantively the judgment offers three useful confirmations. The first concerns third-party capacity: the commitment letter is the hinge of the whole system. Without it the third party’s references do not count — that is what cost Mondia Klubb Group its place in the first round — and with an unqualified letter the commitment extends as far as the aspect for which it was given. The requirement that the ESPD itself state the part of the contract fails in law: the form makes no provision for it. The second concerns division into lots in the special sectors, a distinction regularly overlooked in practice. Article 58 of the Law of 17 June 2016, with its duty to consider lots and to justify a decision against them, does not apply there; article 137 leaves the entity free. That is no blank cheque — the choice must still rest on accurate and relevant reasons — but the burden lies differently. The third concerns the proportionality of reference thresholds. What matters is not how many undertakings can meet them, but their relationship to the subject matter and scale of the contract and to the burdens of performance. That the Council here expresses the cumulative requirement as a percentage of the contract value — 34 per cent of the total, 44 per cent of the first six years — gives a workable yardstick for anyone who has to defend or attack such a threshold. What stands out is how heavily the history weighs: a court expert who, in an earlier dispute between the same parties, found that separating vehicle and superstructure was technically riskier supplies the strongest argument here for a single global contract. In this file, practical experience of a failed arrangement counts for more than any argument of principle.
The lesson
If you are a candidate relying on the references of a parent, sister or group company, make sure that precisely that entity signs the commitment letter and produces the exclusion certificates. A subsidiary remains legally ‘another entity’, even when wholly owned by the company that did sign; the first round in this file foundered on exactly that confusion. Leave the declaration free of reservations: that makes the commitment maximal for the aspect concerned and removes the authority’s reason to doubt. Check as well who is empowered to sign, especially for foreign companies — for a French SAS the president suffices, even where he styles himself differently, and for a Danish company the commercial-register extract does the job. If you build a reference in which you are a subcontractor or supplier to another contractor, check whether you can claim it at all: you are not the holder of a contract the authority concluded with someone else, and a per-contract threshold cannot be reached by adding two smaller contracts together. Where the specifications ask for an all-in reference, your own performance must cover the entire subject matter — here the vehicle and the platform and the maintenance of both. If you are the contracting entity, and certainly in the special sectors: you need not justify the decision not to divide into lots in the contract documents, but do record the reasons in your purchasing strategy. A documented bad experience with a split arrangement, backed by an expert report, is the kind of support that survives a proportionality review. If you tailor clarification questions to what each file raises, keep a record of why one candidate received more questions than another — the difference in treatment is justified by the difference in the files, not by the candidate.
Ask yourself
Has every third party whose capacity you rely on — and not its parent or a sister company — signed the commitment letter and produced the exclusion certificates? Have you checked whether the signatory can bind the company alone under its own national law, and do you hold the document that proves it? Does your declaration contain any reservation the authority could read as a limited commitment? On references: are you genuinely the holder of the contract you invoke, does your own performance cover the full subject matter the specifications call ‘all in’, and does each reference reach the threshold on its own? And as a contracting entity in the special sectors: have you recorded internally the reasons for not dividing into lots, even though you need not publish them in the contract documents — and can you express your reference thresholds as a ratio to the scale and duration of the contract?
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 →