Two companies in joint venture wanting to intervene? Pay 150 euros twice — otherwise no intervention
MONUMENT HAINAUT and MONUMENT VANDEKERCKOVE jointly try to intervene against the suspension of their award by the City of Charleroi, pay only one 150 euro fee for the two requesters — and see their intervention declared inadmissible.
What happened?
On 8 April 2014 the City of Charleroi decides to set aside the offer of HULLBRIDGE ASSOCIATED for the maintenance and renovation of the roofs of the Charleroi town hall for non-compliance with the specifications, and awards the contract to MONUMENT HAINAUT and MONUMENT VANDEKERCKOVE jointly forming a société momentanée. HULLBRIDGE files an annulment request on 30 April 2015. Earlier, on 7 April 2015, the two winning companies had jointly filed one common request for intervention in the suspension proceedings. On 16 April 2015 the Council of State suspends the contested decision through extreme urgency (judgment No. 230.870). After the suspension the City of Charleroi reconsiders. On 14 July 2015 its board withdraws the contested decision. The withdrawal is communicated to the Council on 24 July 2015 and is formally notified to the bidders mentioning the appeal deadlines. No bidder — including MONUMENT HAINAUT and MONUMENT VANDEKERCKOVE — requests annulment of that withdrawal within the legal deadline. The withdrawal therefore becomes final. On 15 July 2016 acting president David De Roy rules. Three issues must be settled. First, the intervention: under Article 70, §3 of the Regent's Decree of 23 August 1948 a joint request must include the 150 euro court fee paid as many times as there are requesters. MONUMENT HAINAUT and MONUMENT VANDEKERCKOVE should have paid 300 euros together. Only one payment of 150 euros was actually made. The intervention request is declared 'not accomplished'. The 150 euros is reimbursed to the first intervening party. Second, the object: the final withdrawal of the contested decision deprives the action of its object. The suspension of judgment No. 230.870 is lifted, and there is no need to rule on the merits. Third — and this is where the real discussion lies — the procedural compensation. HULLBRIDGE asks for double 2,800 euros: it argues that it not only had to file the suspension request but also the annulment request and a reply memorial because the City of Charleroi withdrew too late. The Council refuses. It analyses Article 67 of the procedural rules (basic amount 700 euros, maximum raised to 2,800 euros for public procurement disputes) and rules: (a) HULLBRIDGE puts forward no concrete elements that would justify raising the basic amount (700 euros) to the maximum (2,800 euros), such as exceptional complexity; (b) the 20% surcharge (Article 67, §2, first paragraph) is in any case not due when an action is declared without object (Article 67, §2, third paragraph). Result: a single award of 700 euros, payable by the City of Charleroi. Plus 400 euros in other costs against the City.
Why does this matter?
Two important pitfalls for anyone in a procurement dispute. First: temporary joint ventures (sociétés momentanées) are not legal persons — the partners are separate requesters. When you intervene jointly to defend your award you must pay the court fee per partner, not once for the SM. Second: the strategic calculation of procedural compensation. The maximum of 2,800 euros is rarely awarded — you must show concrete elements of complexity to go above the basic 700 euros. And after winning a suspension it is tactically tempting to file the annulment request 'just to be safe', but if the contracting authority eventually withdraws, you get no extra compensation for that extra work: Article 67, §2, paragraph 3 explicitly excludes the 20% surcharge when the action is declared without object.
The lesson
Structure your joint venture properly before launching litigation: decide in advance who is requesting and pay the court fee per requesting member. When weighing whether to fully develop the annulment after winning a suspension, consider: if the contracting authority has announced it will withdraw, extra work costs you time without yielding extra compensation. If you want more than the 700 euro basic compensation, document the concrete complexity of your file in your memorial or oral pleadings — refer to page count, number of grounds, technical assistance, duration of proceedings. A vague reference to 'extra work' is not enough.
Ask yourself
You are with a second contractor in a joint venture. Your award is being challenged and you want to intervene. Did you pay 150 euros, or 300 euros? For one request with two requesters you must pay 2 × 150 euros — otherwise your intervention is not accomplished.
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 →