Seven references from Klubb France, but no signature from Klubb France: one missing annex costs Mondia Klubb Group its place on the ORES shortlist
Mondia Klubb Group attached to its application for the ORES framework agreement for aerial-platform vehicles the ESPD and the references of the French company Klubb France, but not its commitment letter — only that of sister company Klubb Group — and the Council of State holds that ORES rightly disregarded those references and was not required to let the missing document be supplied afterwards, so both the suspension and the requested interim measure are refused.
What happened?
On 17 December 2025 the intercommunal company ORES Assets launched a framework agreement for the supply of utility vehicles with a mobile elevating work platform (MEWP), including maintenance of the whole: a negotiated procedure with prior call for competition, a duration of up to eight years, a maximum value of 75 million euros, three selection criteria and a maximum of three candidates to be invited to tender. Five undertakings applied. In the first selection of 18 March 2026 Mondia Klubb Group was still among the chosen; that decision was suspended on 4 May 2026 by judgment no. 266.578 at the request of Comet Belgium, precisely because the reasons given did not make clear how ORES had dealt with Mondia’s application. The file showed that Mondia had ticked ‘no’ in its ESPD to the question on relying on third-party capacity, while producing the ESPDs of two French companies — SASU Klubb France and SAS Klubb Group — and that 471 of the 475 references retained for the first selection criterion and all seven for the second stood in the name of Klubb France, a company that had produced neither a commitment letter nor exclusion certificates. ORES withdrew its decision on 20 May 2026 and re-examined all applications. In the selection sheet of 16 June 2026 it drew the conclusion: since only Klubb Group had signed a commitment letter and Klubb France had not, the references of Klubb France could not be taken into account. What remained in Mondia’s own name was, for the first criterion, one sale in 2022, three in 2023, none in 2024 and one in 2025 — too few — and for the second criterion no reference at all, where three were required. On 17 June 2026 the board selected France Élévateur Benelux and HDW Belux and rejected Mondia Klubb Group and Comet Belgium. Mondia sought suspension under extreme urgency and an interim measure: an order prohibiting ORES from sending the specifications to the two selected candidates. Its first plea, in three limbs, accused ORES of relying on a purely material error — the ticked ‘no’ in the ESPD — and on a misreading of the third parties’ ESPDs, which as third parties were precisely required to answer ‘no’ to the question whether they themselves relied on others’ capacity. The Council rejected the plea in all its limbs because it rested on a misreading of the contested decision: ORES did note the errors in the ESPDs but did not base the rejection on them. On the contrary, it had acknowledged Mondia’s intention to rely on Klubb France’s capacity, and had merely held that, absent a commitment letter from that company, it could only count the references in Mondia’s own name. The second plea concerned a right to regularisation. Mondia argued that ORES should have allowed it to produce the missing annex 6, especially since other candidates — France Élévateur Benelux, by email of 30 January 2026 — had been given that chance, and since the contested decision itself states that the authority had requested additional information under article 147, § 4 of the Law of 17 June 2016. The Council started from the function of the document: a candidate may invoke a third party’s references only if that third party effectively undertakes to make its resources available for performance; without that undertaking those references do not count. The commitment letter is therefore an essential document of the application — which Mondia did not itself dispute, since it claimed a right to regularise. The Council then applied the Court of Justice’s Esaprojekt judgment (4 May 2017, C-387/14): after the deadline for applications an operator may not send documents that were not in its original offer, such as a contract performed by a third party and that party’s undertaking to make resources available, because this is not a punctual clarification but a substantial modification touching on the very identity of the operator and on the verification of its capacity. The Council saw no reason why that prohibition would not apply to the application stage of a two-phase procedure, where the existence of the undertaking is verified precisely at the selection stage, nor why it would not apply in the special sectors. The ESPD in Klubb France’s name and its references show the intention to rely on that third party, but provide no proof — not even the beginning of proof — that Klubb France undertook anything; that proof must come from those empowered to bind it, and no such document was in the application. That Mondia, after being notified of its rejection, produced a commitment letter dated before the submission of its application changed nothing: ORES could not presuppose, when deciding, the existence of a document that was not in the file, since the participation form clearly required annex 6 to be enclosed. It is for the operator to prepare its application carefully and ensure it is complete. Article 147, § 4 moreover confers only a power, not a duty, to question the candidate. The Council then analysed the three judgments Mondia invoked. Judgment no. 229.676 of 22 December 2014 predates Esaprojekt, speaks only of a possibility of having the commitment letter produced, and in fact concludes that without such an undertaking the authority may not rely on the third party’s capacity — the contested decision is consistent with it. Judgment no. 260.179 of 19 June 2024 suspended a rejection resting on factually inaccurate reasons: the authority had been mistaken about the candidate’s identity, and clarifications on that point may indeed be sought. Judgment no. 252.475 of 20 December 2021 applies article 74, § 4 of the Royal Decree of 18 June 2017 because paragraph 1, fourth subparagraph, deems the absence of an ESPD a substantial irregularity; it does not apply that provision ‘by analogy’ to the application stage. The regime governing the regularity of tenders does not, in any event, apply to verifying an operator’s capacity to perform the contract. On the complaint of unequal treatment, the Council followed ORES prima facie: the questions put to the other candidates concerned clarifications, additions or updates of material already in their files, not the supply of a missing essential document — objectively different situations. Since no plea was serious, the requested interim measure fell away too. Documents II.1 and II.2 of the applicant and A to M of ORES remained confidential, immediate enforcement of the judgment was ordered, and Mondia was ordered to pay the roll fee of 200 euros, the contribution of 26 euros and a procedural indemnity of 770 euros. The action was inadmissible in so far as it targeted the as yet non-existent award decision. ORES had also noted in the selection sheet that, given the rejection, there was no need to investigate further whether Mondia fell within a case of discretionary exclusion on account of elements concerning its judicial reorganisation raised in the earlier proceedings.
Why does this matter?
This judgment draws a line that is often underestimated in practice: the difference between showing that you rely on a third party and proving that the third party has committed itself. Mondia had everything that looks convincing at first sight — an ESPD in Klubb France’s name, seven of its references, a presentation of its technology — except the one document that counts legally: Klubb France’s own signature under annex 6. The Council calls that not a formality but an essential document, and refuses to treat it as a curable defect. Esaprojekt is thereby extended to two situations on which the Court had not expressly ruled: the application stage of a two-phase procedure, and the special sectors. Equally important is what the judgment says about article 147, § 4 of the Law of 17 June 2016. Bidders like to read that provision as a safety net, but it confers only a power on the authority. That other candidates were questioned does not change this, so long as those questions concerned clarifying or updating what was already in the file. The line lies at supplying something that was not there — exactly the line the Court drew in Esaprojekt. The judgment also rebuts an intuitively strong argument: after its rejection Mondia produced a commitment letter dated before the submission of its application. The Council answers soberly that, when deciding, the authority could not presuppose the existence of a document that was not in the file. Whoever genuinely already had the undertaking simply had to enclose it. Finally, this is the mirror image of judgment no. 267.455 of the same day. Comet Belgium won the suspension of the first selection in May, partly by pointing at the weak spot in Mondia’s file; on re-examination Mondia lost its place as a result, and Comet did not get through either. The repair work ORES carried out held up both times. That is a sober lesson about what litigating against a selection decision yields: a stricter second reading whose outcome is certain for no one.
The lesson
If you rely on the capacity of a group company, check that the document you enclose comes from precisely the entity whose references you invoke. References from the French subsidiary with a commitment letter from the French parent is not the same thing, however much it looks like one house commercially: a subsidiary remains a legally separate entity. So set out, criterion by criterion, which entity supplies the reference and whether both that entity’s commitment letter and its exclusion certificates are in the file, signed by whoever can bind it under its own articles. Do not count on putting this right later: a missing commitment letter is not a material error the authority may allow to be corrected, and article 147, § 4 gives it only the power to ask, not the duty. That other candidates were questioned will not help you so long as those questions concerned clarifications and your problem is a missing document. And if you already held the letter on the day of submission: that makes no difference afterwards, because the authority assesses what is in front of it. If you are the contracting entity, this judgment confirms your room to be strict — provided you explain yourself. Write in your selection sheet why you regard the missing document as essential, why an additional question would here amount to curing a defect rather than clarifying, and why the candidates you did question were in an objectively different situation. Those three sentences are the difference between a decision that holds and the defective reasoning that brought down the first round three months earlier.
Ask yourself
Have you checked, criterion by criterion, which entity supplies the reference, and is that entity’s signed commitment letter in your file — not its parent’s or a sister’s? Is that letter signed by someone who can bind the entity under its own national law, and do you hold the document proving it? Have you answered the ESPD question on reliance on third-party capacity consistently with what your file actually shows? Do you realise that a commitment letter you hold but do not enclose does not legally exist on the day of assessment? And as a contracting entity: does your selection sheet explain why the missing document is essential, why an additional question would here be a supplement rather than a clarification, and why the candidates you did question were in a different situation?
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