One bid in its own name and one through a temporary partnership: Idelux rejects WAVE automatically and loses in summary proceedings
Because WAVE had submitted a bid both in its own name and through the temporary partnership Mémoires Vives for lot D of the scenography of the Bastogne memorial centre, Idelux automatically rejected both bids as irregular; the Council of State suspended that decision, since a temporary partnership bids in its own capacity and the one-bid rule of article 103 may not be applied automatically without allowing the bidder to show that competition has not been distorted.
What happened?
The intermunicipal company Idelux Projets publics launched a contract for the scenographic fit-out of the Second World War memorial centre on the Mardasson site in Bastogne. The visitor route was divided into four lots, A to D; lot D covered multimedia and the audio guide. WAVE submitted a bid for lot D in its own name. It was also a member of the temporary partnership Mémoires Vives, formed with Pinckaers and Activity Group, which likewise submitted a bid for that same lot D. By decision of 26 November 2012, Idelux declared both bids irregular. The reasons, notified to WAVE by letter of 4 December 2012 under article 65/8, § 1, 2° of the law of 24 December 1993, were brief: ‘WAVE forms part of the temporary association Mémoires Vives and consequently WAVE has submitted two bids’, which the authority considered contrary to articles 93 and 103 of the royal decree of 8 January 1996. After that double rejection only the bids of Meyvaert and Sonim remained; the lot was awarded to Meyvaert Glass Engineering. WAVE applied on 19 December 2012 for suspension under extreme urgency; the case was heard on 17 January 2013. The Council of State sided with WAVE. When a temporary partnership submits a bid, it does so in that capacity and not as agent of the undertakings composing it; its interests are distinct from those of its members, it is itself the authority’s contracting partner, and its bid forms a whole rather than the sum of its members’ bids. There could therefore be no two bids from WAVE. That reading is confirmed by the Court of Justice’s Assitur judgment of 19 May 2009 (C-538/07): rules resting on an irrebuttable presumption that the bids of linked undertakings necessarily influenced one another breach the principle of proportionality, because they deny those undertakings the chance to show that in their case there is no real risk of practices capable of distorting competition. Since the European publication threshold was met here, automatic exclusion had to remain exceptional. The first plea was serious. In the balancing of interests, Idelux raised a long list of objections: the overall project of roughly eight million euros excluding VAT was partly funded by the ERDF, the shell and technical works were nearly finished, lots A, B and C had already been notified, three immersive rooms were waiting for equipment from lot D, the operating company had been appointed and had started commercialisation with a view to opening before the summer, and restarting the award procedure would push completion beyond the end of 2013, the deadline for the ERDF funds. Idelux finally argued that the project keeps alive the memory of past generations’ sacrifices. The Council dismissed that argument for a sober reason: the defending party produced not a single document substantiating its assertions. Moreover, the ERDF funds remain available until the end of 2013, and correcting the illegality only requires Idelux to include WAVE’s bid in the analysis or to question WAVE about its links with the temporary partnership — a remedy achievable at short notice. The Council suspended the contested decision, ordered immediate execution of the judgment and notification by fax, and reserved the costs.
Why does this matter?
The ban on submitting more than one bid per contract looks simple, but it collides with common practice: undertakings that group together to cover all lots of a contract while also bidding in their own name for the lot in which they are strongest. This judgment draws the line sharply. Membership of a temporary partnership does not turn its bid into the bid of each of its members: legally, the partnership itself is the bidder. An authority that confuses this and automatically rejects the bids concerned breaches not only articles 93 and 103 of the royal decree of 8 January 1996 as read in the light of EU law, but also the principles of equal treatment and transparency. The second half of the judgment is equally instructive. Authorities seeking to fend off a suspension with a story about planning, subsidies and an imminent opening must document that story. Idelux advanced everything imaginable — ERDF deadlines, immersive rooms waiting on lot D, an operator already selling tickets, even a duty towards fallen generations — and lost because not a single document accompanied it. The balancing of interests is not a rhetorical exercise; it is an evidentiary task. And it weighs all the less when, as here, the illegality can be cured with a limited intervention.
The lesson
If you bid in your own name while also belonging to a temporary partnership bidding for the same lot, you are not automatically irregular: the partnership is itself the bidder and its bid is a whole, not the sum of its members’ bids. If you are nonetheless rejected, point the authority to the Assitur judgment and to your right to show that the two bids did not distort competition — explaining concretely why you set up the arrangement, as WAVE did with its wish to bid on each of lots A to D. As an authority, reject no one automatically: first question the bidder about its links with the partnership and about price formation, and only then give reasons. If you want to fend off a suspension with urgent planning or expiring subsidies, produce documents; bare assertions in a note will not do, certainly not where the error can be corrected within weeks.
Ask yourself
Do you know that a temporary partnership’s bid legally emanates from that partnership and not from each of its members separately, so that you do not automatically submit two bids when you also bid in your own name? If you are considering such double participation, do you have it on paper why it does not distort competition and how the two bids differ? As an authority: do you ask the bidder for an explanation before rejecting its bid, or do you apply article 103 mechanically? And do you have the documents ready — schedules, subsidy decisions, contracts — with which you intend to tip the balance of interests in your favour in summary proceedings?
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 →