Creasys challenged the National Lottery’s award of the pavement-sign contract without a lawyer, but tripped over its own statutes: the action was inadmissible
Creasys, an unsuccessful bidder, sought suspension under extreme urgency of the National Lottery’s award of a contract for the purchase of pavement signs, but because it acted as a legal entity without a lawyer and had attached neither its statutes nor proof of a valid decision to go to court to its application, the Council of State declared the action inadmissible.
What happened?
On 23 October 2014 Creasys sought, under extreme urgency, the suspension of the National Lottery’s decision awarding a public contract for the purchase of ‘pavement signs’; that decision had been notified on 10 October 2014. The parties were summoned to the hearing of 7 November 2014. The Council of State first examined admissibility. Article 3, 4°, of the Regent’s decree of 23 August 1948, as amended by the royal decree of 28 January 2014, requires a legal entity introducing an application without a lawyer to attach a copy of its published and coordinated statutes, together with proof that the competent organ validly decided to go to court — so that it is established that the company acts through natural persons whose appointment is regular and enforceable against third parties. It was not disputed that Creasys had attached to its application neither a copy of its statutes nor the documents showing that the decision to bring the case before the Council of State had been validly taken by its organs. At the hearing the applicant merely argued that it had attached to its offer in the contested tender file a copy of a publication in the annexes to the Belgian Official Gazette of 21 May 2014. That publication concerned a decision of the general meeting of 3 May 2014 taking note of the resignation of Jean-François Vilain XIIII as manager and appointing Autonetwork Développement as new manager, with Vilain XIIII as permanent representative. Even assuming the Council could take that document into account, it did not suffice to meet the requirements of article 3, 4°, nor to verify the regularity of the decision to litigate. The action was therefore declared inadmissible. In addition, the National Lottery asked that four documents be kept confidential — the offers of Creasys and of the firm Van Raalte Displays, the emails between the Lottery and Creasys about the proposed price, and the email of 13 October 2014 with the wind-resistance test of the pavement signs. As those documents were not necessary at that stage for the solution of the dispute, the Council provisionally maintained their confidentiality. The costs were set at 200 euros and placed on Creasys, and the National Lottery was awarded the basic procedural indemnity of 700 euros.
Why does this matter?
This short judgment is a costly reminder that a case before the Council of State sometimes does not fall on the merits but on a condition of access that has nothing to do with the procurement file. A company is not a natural person: it acts through organs, and whoever goes to the Council without a lawyer must show at once that those organs are regularly appointed and that they validly decided to bring the case. Trying to provide that proof afterwards, at the hearing, is too late, and a Gazette publication about a change of management does not suffice. For bidders who consider challenging an award themselves, without counsel, the message is clear: the substantive strength of your pleas is irrelevant if your application does not meet the formal requirements. Especially under extreme urgency, where the time limits are short, an incomplete file leaves no room for repair. The cheap route — no lawyer — may thus prove the most expensive: the action is lost before it really begins, with the costs and a procedural indemnity on top.
The lesson
If your company acts before the Council of State without a lawyer, attach from the moment of filing a copy of your published and coordinated statutes, together with proof that your competent organ validly decided to go to court (for example minutes of the manager or the board). Do not count on putting this right at the hearing, and do not assume that a mere Gazette publication about a change of management suffices. Under an extreme-urgency procedure the time limits are too short to repair an incomplete file. If in doubt, engage a lawyer: in that case the burden of proof about the decision to litigate does not apply in the same way, and you avoid a strong file falling on a formal defect.
Ask yourself
If your company challenges an award without a lawyer, did you attach to your application your published and coordinated statutes and the proof that the competent organ validly decided to bring the case? Do you realise that this proof must be present at filing and can no longer be supplied at the hearing? Do you know that a publication in the Belgian Official Gazette about a change of management does not suffice? And, given the short time limits under extreme urgency, have you considered whether engaging a lawyer would spare you an inadmissibility that never lets your substantive arguments be heard?
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 →