Aerial platforms for ORES: the Council of State suspends Comet’s non-selection because the reasoning fails to dispel the doubts about two shortlisted candidates
For a 75-million-euro framework contract for aerial-platform vehicles, ORES Assets selected three of the five candidates and left Comet Belgium (fourth ex aequo) out, but the Council of State suspends that non-selection under extreme urgency: the reasoning does not explain why the leading candidate Mondia Klubb Group could rely on the capacity of one French Klubb company while the attestations came from another, nor why disputable maintenance references (‘hors porteur’, later rewritten as ‘+ porteur’) qualified as ‘all-in’ contracts.
What happened?
ORES Assets, the Walloon distribution network operator, wants to renew its fleet of around a hundred aerial platforms in full and on 19 December 2025 published a notice for the selection phase of a framework contract for the supply of utility vehicles fitted with a mobile elevating work platform (PEMP), including maintenance of the whole. It was an ‘all-in’ contract in the special sectors, through a negotiated procedure with prior call for competition (file ACFELVWA35), with an estimated maximum value of 75 million euros, a duration of up to eight years and around 120 vehicles in five categories. The notice expressly stated that a maximum of three candidates would be invited to submit an offer. There were three selection criteria, two of which matter here: criterion 1 (30 points) required references for the sale of vehicles with an electric PEMP (at least 6 vehicles per year for at least three of the years 2022-2025); criterion 2 (70 points) required three ‘all-in’ maintenance references (sale of vehicles with a PEMP including maintenance of the whole) of at least 4 million euros excl. VAT each, totalling at least 15 million euros. Five undertakings applied: Comet, France Élévateur Benelux, HDW Belux, Mondia Klubb Group and Renault Trucks Belux. All five met the selection criteria, but since only three could proceed, ORES applied the announced ranking method; Comet finished fourth ex aequo with Renault Trucks Belux and, by decision of the board of directors of 18 March 2026 (notified on 20 March), was not selected. Comet sought suspension under extreme urgency. The Council of State found the first plea — breach of the duty to state reasons — serious, on the basis of two difficulties revealed prima facie by the administrative file. First, regarding the top-ranked candidate Mondia Klubb Group (wrongly called ‘Mondia Klubb Wallonie’ in the contested decision): in its ESPD it declared that it did not rely on the capacity of other entities and did not intend to subcontract, yet it filed the ESPDs of two French companies (SASU Klubb France and SAS Klubb Group). The references for the first two criteria came not from ‘Klubb Group for Mondia’ but from SASU Klubb France: of the 475 references retained for criterion 1, 471 came from SASU Klubb France and only 4 from Mondia itself; for criterion 2 all 7 references came from SASU Klubb France. That company, however, provided neither a commitment letter to place its resources at the candidate’s disposal nor the attestations showing it was not in a ground for exclusion — those documents were filed in the name of SAS Klubb Group. The reasoning did not allow one to understand why ORES assumed that Mondia relied on SAS Klubb Group and not on SASU Klubb France. The Council pointed to the Court of Justice’s judgment of 22 January 2026 (C-812/24): a subsidiary, even wholly owned by the parent, remains ‘another entity’, so that the authority must have exact and complete knowledge of each participating entity. Second, for criterion 2 ORES retained 7 references for Mondia, but in 5 of the 7 the application stated ‘Supply + Maintenance Platform/without carrier’ and in only 2 ‘+ Carrier’ — which may indicate that only two genuine ‘all-in’ contracts of at least 4 million euros were produced; in the ‘administrative analysis table’ ‘without carrier’ had, without any explanation, been replaced by ‘+ carrier’. The same difficulty arose for France Élévateur Benelux (second for that criterion): three of the four references stated ‘sale and maintenance of PEMP’ and one merely ‘sale and maintenance’, while the table had, without explanation, turned the latter into ‘sale and maintenance of PEMP’. The reasoning did not explain why those references qualified as ‘all-in’ contracts (carrier and PEMP plus maintenance). The first plea was therefore serious for breach of the duty to state reasons. In the balancing of interests, the Council saw no disadvantages of a suspension outweighing its advantages. The Council suspended the decision of 18 March 2026 not to select Comet and to select three other candidates, rejected the application for the remainder, ordered the immediate execution of the judgment, kept documents A to G confidential, and ordered the refund of 226 euros that Comet had paid prematurely for its annulment action; the costs, including the procedural indemnity, were reserved.
Why does this matter?
The judgment shows that the duty to state reasons in the selection phase may be light — but only as long as the file reveals no difficulties. Once it does, the authority must expressly explain why the difficulty is resolved and the candidate nonetheless qualifies. A succinct reasoning that falls back on an internal analysis table is not enough where that table itself feeds the doubt, for instance by replacing the wording of the application (‘without carrier’) with something more favourable (‘+ carrier’) without explanation. Equally important is the lesson on reliance on the capacity of third parties: a candidate relying on another entity — even a wholly owned subsidiary — must identify that entity correctly and provide from it the commitment letter and the exclusion-ground attestations. The Council anchors this in the recent case law of the Court of Justice (C-812/24): a subsidiary is not an extension of the parent but a separate entity whose reliability must be shown separately. For a contract of this size — a 75-million-euro framework with a shortlist of three — such a selection error directly determines who may even submit an offer, which explains the use of an extreme-urgency suspension at this stage.
The lesson
For authorities: keep your selection decision succinct as long as everything is clear, but address every difficulty revealed by the file expressly — explain why you still consider the candidate suitable. Beware of ‘cleaning up’ application data in an internal analysis table: if you replace ‘without carrier’ with ‘+ carrier’ or ‘sale and maintenance’ with ‘sale and maintenance of PEMP’, you must be able to justify it, or you undermine your own decision. Where a candidate relies on the capacity of a third party, identify the correct entity and require from precisely that entity the commitment letter and the exclusion attestations; a wholly owned subsidiary is a separate entity (CJEU C-812/24). For bidders: you meet the selection criteria but fall outside the shortlist? Read the reasoning and the administrative file critically. Do your competitors’ retained references really match what the specifications require (here: ‘all-in’ contracts carrier + PEMP + maintenance)? Are the attestations and commitment letters of the relied-upon third parties complete and in the right name? In the selection phase of a large framework contract an extreme-urgency suspension is a real lever, because selection determines who may still compete.
Ask yourself
Have you, as an authority, expressly reasoned every difficulty revealed by the file in your selection decision, instead of relying on a succinct reasoning and an internal table? Can you justify why a candidate’s retained references meet what the specifications require, even where the application itself uses different wording? Where a candidate relies on the capacity of a third party, have you identified the correct entity and obtained from it the commitment letter and the exclusion attestations, knowing that a wholly owned subsidiary is a separate entity? And as a rejected candidate: have you checked whether the selected competitors’ references and documents really meet the specifications before accepting your non-selection?
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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 →