One member of a temporary company goes to the Council of State on its own — and the application founders on admissibility
Maxwan Architects + Urbanists alone challenged the award of the design-and-study contract for Park Groot Schijn to the competing temporary company Buur / Hosper / Bulk, but because it was not Maxwan itself but the temporary company ‘TV MTW’ that had applied and submitted the bid, Maxwan — acting on its own as a member — lacked the required capacity and interest, so the Council of State declared both the annulment action and the suspension application inadmissible.
What happened?
The Autonomous Municipal Company Stadsplanning Antwerpen launched a restricted call for tenders for a services contract for the ‘Design-and-study assignment Park Groot Schijn’, under specification AGSTAN/SPIPGS/BE08. The call for candidates appeared on 13 December 2012 in the Bulletin of Tenders and on 18 December 2012 in the Official Journal of the European Union. Twenty-four candidacies came in, including that of ‘TV MTW’ — a temporary company formed by Maxwan Architects + Urbanists, Witteveen+Bos Belgium and 1010 Architecture Urbanisms, who had agreed to enter into a temporary company upon award. TV MTW's candidacy was selected, after which that same TV MTW submitted a bid. On 12 September 2013 the company's board decided to award the contract to another bidder, the temporary company Buur / Hosper / Bulk. TV MTW was notified of that award decision by registered letter of 30 September 2013. On 15 October 2013, however, Maxwan Architects + Urbanists — alone — filed a single application seeking both suspension and annulment of the award decision. The municipal company objected that the application was manifestly inadmissible, since it emanated from only one member of the temporary company that had submitted the bid. The Council of State upheld that objection. Only a party that was a regular candidate for the performance of a public contract has the required capacity and a sufficient personal and direct interest to seek annulment of the decision awarding the contract to another; the action is ideally meant to give the applicant a fresh chance to be awarded and perform the contract itself. Since it was TV MTW that had applied, been selected and submitted a bid, only that temporary company — even one in formation — could seek suspension and annulment. An annulment action on behalf of such a company without legal personality is admissible only where all partners act jointly and validly. Here, however, only Maxwan had filed the application and only its managing director had decided to litigate. Acting alone, Maxwan therefore lacked the required capacity and the legally required interest. The Council declared the annulment action inadmissible and, because a suspension may under article 17 of the coordinated laws only be ordered where the act is amenable to annulment, it also rejected the suspension application as inadmissible. The applicant was ordered to bear the costs of the suspension application, set at 175 euros.
Why does this matter?
Firms that bid together — as a temporary company, design team or other combination without legal personality — form a single litigating party for the duration of the contract, with consequences all the way to court. Whoever applies and bids as a combination must also defend itself as a combination: an annulment action against the award is admissible only if all members act jointly. This judgment starkly shows what happens when one partner goes to the Council of State alone — the application falls on admissibility, before a single substantive argument is examined, and the party bears the costs. The underlying logic is that the interest in a procurement action lies in obtaining a fresh chance to perform the contract oneself; that interest belongs to the bidder that made the offer, not to one of its components. For combinations this is no formality but a strict condition of access to the court, which cannot be cured by pointing to good faith or the close ties between the partners.
The lesson
If you bid as a temporary company or other combination without legal personality, run your litigation as a combination too. Have the application for suspension or annulment emanate from all members jointly, and make sure each member has internally and validly decided to litigate; a signature or board decision from one partner is not enough. Check who exactly was the candidate and bidder in the contract documents and the minutes, because that very entity holds the capacity and interest to litigate. As the awarding authority, it pays to test admissibility early on an action: was it brought by the full combination that bid, or by just one member? A timely objection can settle the case without any debate on the merits.
Ask yourself
Do you know that a temporary company which applies and submits a bid must also bring the action against the award as a whole — with all partners acting jointly? Have you checked that each member of the combination has internally and validly decided to litigate, and not just the partner signing the application? Do you realise that the capacity and interest belong to the bidder that made the offer, not to one of its constituent firms separately? And as an authority: do you test early, on a procurement action, whether it truly emanates from the full combination that bid, so that an inadmissibility can spare you a debate on the merits?
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 →