Suspension of non-selection of Sia Partners — bPost confused Belgian branch with separate legal entity
Suspension ordered: the non-selection of Sia Partners SAS for three lots of a bPost consultancy framework agreement is based on an error of fact — bPost wrongly considered the candidate to be a Belgian legal entity when it was in fact the French SAS with a Belgian branch lacking separate legal personality, and bPost's clarification questions were not formulated in a way that would allow the candidate to detect this confusion.
What happened?
In late 2023, bPost launched a negotiated procedure with prior publication for a consultancy framework agreement (ref. 2023-5-007) divided into six lots. On 29 January 2024, Sia Partners submitted its candidacy. In the participation form, it identified itself as a Belgian-nationality legal entity with Brussels headquarters, a Belgian ONSS number and enterprise number. However, the deposit report specified the name 'SIA PARTNERS SAS'. The application also included a Belgian Official Gazette extract establishing that Sia Partners is a French simplified joint-stock company (SAS) headquartered in Paris, with the contact person being the legal representative of its Belgian branch — a branch lacking separate legal personality. bPost noticed the submitted turnover figures were for the French SAS and asked by email on 29 February 2024 for annual accounts 'for Belgium' and confirmation that references were executed 'by the Belgian entity'. Sia Partners provided accounts for 'Sia Partners Belgique' and confirmed references were executed by 'the Belgian entity'. bPost then contacted reference clients directly: La Poste confirmed the mission was carried out by 'the French entity', a second client confirmed 'SIA France' was retained, and the third reference went unanswered. On 19 April 2024, bPost decided not to select Sia Partners SAS for lot 2 (insufficient turnover — only Belgian branch figures retained: EUR 14.3M and 10.8M versus EUR 16M required), nor for lots 3, 5 and 6 (references not executed by the legal entity that submitted the application). Sia Partners challenged the decision and filed an extreme urgency suspension claim on 24 May 2024 for lots 2, 3 and 6. The Council ordered suspension. The non-selection rests on incorrect grounds: the candidate is the French SAS, not a separate Belgian legal entity. The contradictions in the candidacy (Belgian nationality but French legal form SAS and Official Gazette extract) should have prompted bPost to investigate further rather than jump to conclusions. bPost's clarification questions (Article 147 §4) were based on the incorrect premise of a Belgian entity without directly asking about the candidate's identity. The candidate was not obligated to detect, through the questions posed, bPost's analytical errors. A direct question about candidate identity was perfectly possible without violating the Esaprojekt case law. Suspension ordered for lots 2, 3 and 6.
Why does this matter?
This ruling clarifies the contracting authority's responsibility when a participation request contains contradictions regarding the candidate's identity. When a candidacy contains contradictory information — here Belgian nationality but a French legal form (SAS) and an Official Gazette extract revealing a branch structure — the authority cannot resolve the contradiction in its own favour without asking the candidate a direct question. The ruling also specifies the scope of Article 147 §4: clarification questions must be clear and precise, and the candidate is not obligated to detect, through the questions posed, analytical errors made by the contracting authority.
The lesson
As contracting authority: when faced with contradictions in a candidate's identity, ask a direct and unambiguous question — 'Who is the candidate legal entity: the French SAS or a separate Belgian entity?' — rather than formulating questions based on an unverified premise. Consult official documents attached to the candidacy (Official Gazette extracts, articles of association) before drawing conclusions. As candidate: ensure consistency in your participation form, particularly when you operate through a branch without separate legal personality. Clearly state the exact name, nationality and registered office of the candidate legal entity.
Ask yourself
As contracting authority, have I verified the official documents in the candidacy (Official Gazette, ESPD, deposit report) before concluding on the candidate's identity? Are my clarification questions formulated clearly and directly, or do they rest on an unverified premise? As candidate, does my participation form unambiguously identify the legal entity that is applying?
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 →