A temporary commercial partnership trips over its own articles: without a valid decision by each member, the extreme-urgency suspension is inadmissible
The temporary commercial partnership BPC-CFE-CIT Blaton challenged, under extreme urgency, the award of lot 3 (exterior joinery) of the Val Benoît renovation in Liège, but the Council of State declared the application inadmissible because CFE's decision to litigate had been taken by the managing director and a staff member without director status — whereas the articles require two directors acting jointly, and bringing a legal action is not an act of day-to-day management.
What happened?
The cooperative SPI (Services Promotion Initiatives en province de Liège) launched a public works contract for the renovation of the 'génie civil' building on the Val Benoît site in Liège, divided into six lots. Lot 3 concerned the exterior joinery and was awarded through an open call for tenders. A first procedure (specifications no. 2013-328) produced no regular tender: on 18 October 2013 SPI's executive bureau decided not to award lot 3 and to restart the procedure. That same year the director-general approved the new specifications no. 2013-447, with an estimated amount of 6,766,726 euros excluding VAT, again opting for an open call for tenders with European publication. On 29 November 2013 three tenders were opened, from the applicant temporary partnership, from Francovera-Arcers and from Groven+Portal-Gaspard-Vorsselmans-Groven+. The examination report, drawn up by the temporary association Baumans Deffet / Architecture Alain Dirix / Bureau d'études Lemaire, awarded 88 points to Groven+Portal-Gaspard-Vorsselmans-Groven+ and 80 points to the applicant. On 31 January 2014, in line with that report, SPI's executive bureau rejected the Francovera-Arcers tender as irregular — for failing to comply with the Royal Decree of 25 January 2001 on temporary or mobile worksites — and awarded the contract to Groven+Portal-Gaspard-Vorsselmans-Groven+ for 5,493,805.19 euros excluding VAT. The temporary partnership BPC-CFE-CIT Blaton brought a suspension application under extreme urgency against that award decision. SPI contested admissibility: the decision to bring the action on behalf of CFE had been taken by Renaud Bentegeat, managing director, and Jacques Ninanne, financial and administrative director, whereas article 19 of CFE's articles provides that the company is represented in court by two directors acting jointly. The Council of State first confirmed that, since 3 February 2014, the new article 19, sixth paragraph, of the coordinated laws applies: unless proven otherwise, the lawyer is presumed to have been mandated by the capable person he claims to represent. The legislator thus wished to relieve applicants of having to prove the decisions to bring the action, without however excluding the possibility of a challenge and contrary evidence. In this file the decisions to act had precisely been attached to the application, as article 3, 4°, of the Regent's decree of 23 August 1948 still required at the time (the amendment on that point only entered into force on 1 March 2014), so SPI could use those documents as contrary evidence. The Council then recalled that only the temporary partnership had an interest in the annulment, and that the action of such a partnership without legal personality is admissible only if each of its members has regularly and simultaneously decided to litigate. CFE's articles designate no organ competent to decide to go to court, but provide that the company is represented by two directors acting jointly, or, within the limits of day-to-day management, by the person appointed to that management, or else by special agents within the limits of their mandate. Here the decision had been taken by the managing director and a staff member who was not a director; bringing a legal action, certainly before the Council of State, does not fall within the legal limits of day-to-day management, and no special mandate had been produced. The decision to bring the action had therefore not been validly taken by one of the members of the temporary partnership excluded from the contract, so that the suspension application was inadmissible. The Council rejected the application and placed the costs of 525 euros on the applicants, at 175 euros each.
Why does this matter?
Contractors like to join forces in a temporary commercial partnership to win large works, but such a construction has no legal personality, and that has consequences right into the courtroom. This judgment shows why a joint tender requires a joint — and corporately correct — decision to litigate from each individual member. A single weak link suffices: if, for one of the partners, the decision to bring the action was not taken by the competent organ as the articles prescribe, the entire suspension application is inadmissible, however strong the case on the merits. The judgment also clarifies two things that are often confused. First: the presumption that the lawyer is duly mandated relieves applicants of spontaneous proof, but it is rebuttable — and those who themselves attach their decisions to act to the application hand the other party the material to overturn precisely that presumption. Second: bringing a legal action is not an act of day-to-day management, so a managing director or a director without a special mandate does not validly bind the company for that purpose.
The lesson
If you tender as a temporary commercial partnership, make sure each member separately, through its statutorily competent organ, validly and timely decides to litigate before you bring a suspension or annulment action. Check the articles of each partner: does the signature of the managing director suffice, or are two directors acting jointly required? Do not count on the presumption that the lawyer is mandated to catch everything — that presumption is rebuttable, and if you voluntarily attach your decisions to act, the authority can use them against you. Remember that conducting litigation is not an act of day-to-day management; if in doubt, grant an express special mandate. If you are the authority and are challenged by a temporary partnership, check whether the decision to litigate was validly taken by each member: it is a real and sometimes decisive admissibility lever.
Ask yourself
Has each member of your temporary partnership, through its statutorily competent organ, validly and simultaneously decided to bring the action? Do you know that the action of a temporary partnership without legal personality is admissible only if that condition is met for each member? Do you realise that bringing a legal action is not an act of day-to-day management, so that a managing director or director without a special mandate does not bind the company for it? And do you know that the presumption that the lawyer is duly mandated is rebuttable, and that the documents you attach yourself may be used against you?
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 →