No board decision and the wrong procedure: Axima’s challenge to the Rebecq swimming-pool award fails — but the municipality stays in the case
Axima Contracting GDF Suez, ranked second for the air-handling and heating lot of the new swimming-pool complex in Rebecq, sought an ordinary suspension of the award in January 2011, but the Council of State dismisses the application because the company produced no decision of its board of directors to litigate and because, for contracts advertised after 25 February 2010, only the extreme-urgency procedure was available — while the municipality of Rebecq, which asked to be removed from the case, remains a party because of its own ambiguous communication.
What happened?
A works contract was put out to tender for the construction of a complex with a swimming pool in Rebecq; the notice appeared in the Bulletin des adjudications on 29 October 2010. Axima Contracting GDF Suez bid for lot 6, air handling and heating, and came second. It received a letter stating that its offer had not been chosen, and on 12 January 2011 sought suspension of that decision, which it attributed to the municipal administration of Rebecq. It chose the ordinary suspension procedure for this. The application was signed by Christian Popeler, ‘Deputy Manager Wallonie’, and Bernard Pirson, ‘General Manager Wallonie’. The president of the VIth chamber, Odile Daurmont, dismissed the application on two grounds. First, the Council noted of its own motion that the application was accompanied neither by the company’s articles of association, nor by a decision to bring proceedings before the Council of State, nor by any proof of the capacity of the two signatories. In a Belgian public limited company it is in principle the board of directors that decides to take legal action; without a decision of that body, the application is inadmissible. Second, this was a works contract advertised after 25 February 2010, the date on which Book IIbis of the Act of 24 December 1993 entered into force. Article 65/15 of that Act prescribes the extreme-urgency procedure for such contracts. An application through the ordinary suspension procedure is therefore inadmissible. In addition, the municipality of Rebecq asked to be removed from the case: not it, but the board of directors of the non-profit association Sportissimo, an intermunicipal body, had decided the award, and Axima could not have been mistaken about that. The Council saw it differently. The decision had been sent in an envelope of the municipal administration of Rebecq; the letter containing the mandatory information on the non-award bore no letterhead of any other authority and was signed only ‘Le Président Dimitri Legasse’, which could just as well refer to the mayor as chair of the municipal executive. Only the annex revealed that Sportissimo’s board had taken the decision. The contract notice was ambiguous too: it named as contracting authority ‘sportissimo (Administration communale) Grand Place 13, 1430 Rebecq’, and the specifications designated the municipal administration of Rebecq as the supervising official. The request for removal from the case was therefore rejected. The application for suspension was also dismissed, and Axima had to bear the costs of 175 euros.
Why does this matter?
The judgment brings together three admissibility traps that can still sink a bidder today, before the Council of State even looks at the merits. The first is internal: a company must be able to show that the competent body decided to litigate. An application signed by regional managers, without articles of association or a board decision, does not convince the Council — and it raises the point itself, even if the other side does not. The second is the choice of procedure. With the entry into force of Book IIbis on 25 February 2010, suspension under extreme urgency became the prescribed route for suspending an award; an ordinary suspension application was no longer admissible for those contracts. That principle lives on today in the Act of 17 June 2013. Those who still relied on old reflexes lost their chance. The third trap lies with the authority: one that leaves it unclear in the notice, the specifications and the notification who exactly decides — here a municipality and an intermunicipal body that were intertwined — cannot afterwards hide behind that ambiguity to be removed from the case. The judgment thus shows that care over form matters on both sides of the proceedings.
The lesson
For bidders: with every application to the Council of State, file the articles of association and a decision of the competent body (usually the board of directors) to litigate, or prove that the signatories have that power. Before challenging an award, check which procedure the law prescribes for the contract in question — since 2010, for suspending an award, that is the extreme-urgency procedure, with its short time limit. And if in doubt about who authored the decision, direct your application against all authorities that present themselves as contracting authority. For contracting authorities: state unambiguously in the notice, the specifications and the notification which legal person and which body is placing the contract and deciding the award. Do not use letterhead, envelopes or signatures that might point to another authority. Whoever creates the confusion remains a party to the proceedings.
Ask yourself
Do you attach to your application the articles of association and a decision of the competent body to take legal action, or proof of the signatories’ authority? Do you know which procedure the law prescribes for suspending an award decision, and its time limit? Have you checked which legal person and which body actually took the contested decision, and are you directing your application against all authorities acting as contracting authority? As an authority: do your notice, specifications and notification make it unambiguously clear who is placing the contract and who decides the award? Is your notification of the award sent on letterhead and with a signature belonging to the deciding authority?
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 →