Four out of five JV members is not enough — one absentee makes the appeal inadmissible
The Council of State declares an extreme-urgency appeal by four architecture firms against the award of the Brussels Music Conservatory project (13 July 2018) inadmissible because the fifth member of their joint venture — SWECO Belgium — did not join the action, and the 'subcontracting cooperation protocol' did not sufficiently prove that SWECO had actually withdrawn from the joint venture.
What happened?
On 13 July 2018 the Belgian State (Beliris) awarded a major architectural contract: the master plan and complete project author mission for the restoration and renovation of the Royal Music Conservatory of Brussels. The award went to the joint venture ORIGIN ARCHITECTURE ENGINEERING – A.2R.C. ARCHITECTS – FREDERIC VANDONINCK WOUTER WILLEMS ARCHITECTEN. The losing consortium CONSERVAT 2.0 disagreed and on 3 August 2018 filed an extreme-urgency suspension appeal at the Council of State. But there was a problem with who exactly was bringing the action. CONSERVAT 2.0 was originally a joint venture of five members: SUMPROJECT, Xaveer De Geyter Architects, Barbara Van der Wee Architects, M&R Engineering and ARIES. The cooperation contract dated from 3 May 2017. On 1 January 2018 — two days after the selection results were announced — M&R Engineering was absorbed by SWECO Belgium through a merger. SWECO took over all rights and obligations of M&R, including its membership of the joint venture. In the tender form (5 April 2018) SWECO indeed appears as one of the five members of CONSERVAT 2.0. But the offer also contains a remarkable document: a 'Samenwerkingsprotocol in onderaanneming SWECO BELGIUM NV – THV CONSERVAT 2.0' (cooperation protocol for subcontracting), signed only by SWECO. It confirms 'the initial agreement with JV Conservat 2.0 that was concluded with M&R Engineering'. When the appeal is filed by only four of the five members (SWECO missing), inadmissibility is raised. The four applicants defend themselves: SWECO is no longer a JV member but became a subcontractor — and even produces a letter of 27 August 2018 from SWECO's CEO confirming that 'on absorbing M&R, Sweco left the joint venture'. The Council sweeps this construction off the table with three arguments. First: the cooperation protocol does not refer to a partial withdrawal but 'confirms the initial agreement' — that points to retained membership. Second: had SWECO really wanted to take over only certain obligations, the protocol should have stated this with 'elementary precision'. Third — and this is the legal core: withdrawal from a JV cannot be unilaterally established by one member; just as the formation required the consent of all members, so does dissolution or withdrawal. Moreover, the letter of 27 August 2018 was 'not drawn up in tempore non suspecto' — only after the procedural issue had been raised. The established principle (already confirmed in judgments 231,794 and 232,069 of 2015 and 226,860 of 2014): whoever submits an offer as a JV must act as the JV in court — all members together, unless the JV agreement contains an explicit 'pacte de représentation in justice'. Result: the extreme-urgency suspension appeal is declared inadmissible. One of the awarded parties (FVWWW) had paid EUR 150 to intervene but did not file a formal intervention request — the Council orders the refund.
Why does this matter?
For every consortium that bids as a joint venture on a public contract, this judgment is a warning: if you later want to go to the Council of State, you must take all members along, including the one who has become less enthusiastic for whatever reason. Forget one — through merger, conflict, business shift — and your appeal runs aground at the threshold. Drafting a subcontracting agreement to leave the JV does not work if the withdrawal is not expressly recorded in tempore non suspecto. The Council will look at unilateral documents with suspicion, especially when they only surface when a procedural argument is needed. The only way out: ensure the JV's founding document includes a 'pacte de représentation in justice' — an explicit clause authorising one of the members to bring legal proceedings on behalf of the JV. A simple representation mandate for submitting the offer is NOT enough.
The lesson
If you set up a joint venture for a major public contract: include in the founding agreement an explicit clause authorising one of the members to act in court on behalf of the entire JV (pacte de représentation in justice). Otherwise, every appeal will require all members to join — including the merged successor of a member that has since disappeared. And if one of the JV members changes role (e.g. becomes a subcontractor): record this in a detailed withdrawal signed by all parties, not via a unilateral protocol.
Ask yourself
Open the JV agreement of your last consortium bid. Does it explicitly state that one member is authorised to 'act in court' on behalf of the entire JV — not just for submitting the offer or for negotiations, but also for proceedings before the Council of State? If not: every appeal will require all JV members, including those no longer interested.
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 →