A power of attorney that did exist but was missing from the file: the Council of State leaves OCMW Ghent’s medicines contract with M.D.D. Pharma
The public welfare centre (OCMW) of Ghent awarded the supply of medicines to its four residential-care homes — a contract worth 795,000 euros — to M.D.D. Pharma, after which competitor Vooruit nr. 1 sought suspension under extreme urgency because the winning tender was signed by only one director and lacked the power of attorney; the Council of State held that a power of attorney which demonstrably existed before the opening and which the authority was willing to accept does not render the tender void, and dismissed the action.
What happened?
The OCMW of Ghent launched an open call for tenders for the supply of ‘medicines and pharmaceutical specialities’ to its four residential-care homes. The contract was governed by special specifications no. FM/2013/155 and estimated at 795,000 euros, VAT included; it was published in the Bulletin of Tenders of 11 April 2013 and in the Supplement to the Official Journal of the European Union of 16 April 2013. The specifications required the signatory to be authorised under the company’s articles or to hold a power of attorney, and that electronic tenders comply with article 81quater, § 1, of the Royal Decree of 8 January 1996. At the opening on 6 June 2013 there were four tenders, including those of Vooruit nr. 1 and M.D.D. Pharma. On 11 February 2014 the OCMW awarded the contract to M.D.D. Pharma. After a series of mishaps with wrong attachments and an incorrect email address, that award decision was finally notified correctly to Vooruit nr. 1 on 20 February 2014. On 6 March 2014 Vooruit nr. 1 sought suspension under extreme urgency, raising a single plea: M.D.D. Pharma’s tender was signed electronically only by managing director N.L., who under the articles could sign alone only up to 5,000 euros and, above that amount, had to act jointly with a second director. The required power of attorney of that second director was not in the electronic tender file; only a PDF overview, ‘volmacht MDDPharma.pdf’, had been attached, referring to a Word document ‘volmacht.docx’ that was absent. Vooruit nr. 1 also invoked the principle of equality, since the tender of Lloydspharma Group had precisely been rejected for a missing power of attorney. In an email of 17 March 2014 the federal e-procurement service confirmed that M.D.D. Pharma had indeed uploaded a power of attorney in .docx format through the ‘power-of-attorney documents’ function and had it digitally signed by director S.C., but that the bidder had attached only the PDF overview and not the underlying ZIP file. A bailiff’s report by Mr Indekeu of 24 March 2014 showed that ‘volmacht.docx’ had already been signed by S.C. on 1 June 2013 — before the opening — authorising N.L. to submit the tender digitally. The Council of State relied on its judgment in nv Tractebel Engineering (no. 223.253 of 23 April 2013): under articles 94 and 110, § 2, of the Royal Decree of 8 January 1996, the authority may reject a tender lacking proof of the power of attorney, but is not obliged to do so. Failing to attach a power of attorney that had already been granted therefore does not entail absolute nullity. Because the OCMW clearly wished to take the power of attorney into account and it demonstrably existed before submission, the premise of the plea failed on the facts. The comparison with Lloydspharma Group did not hold, because there the power of attorney was genuinely absent. The plea was not serious. The Council admitted M.D.D. Pharma’s intervention and dismissed the action. Vooruit nr. 1 was ordered to pay the costs of the action, set at 200 euros; M.D.D. Pharma bore the 150-euro fee for its intervention.
Why does this matter?
The case sharpens the distinction between a tender that is genuinely not validly binding and a tender where only the proof of the power of attorney is missing at submission. That difference is no technicality for bidders: it decides whether a formal defect is fatal or can be cured. The Council confirms the Tractebel line that the authority has a margin of appreciation — it may reject a tender without an attached power of attorney, but is not required to, especially where it is objectively established that the power of attorney existed before the opening. Equally instructive is what the case says about equal treatment: two bidders without a ‘power of attorney in the file’ are not automatically in the same position. With Lloydspharma Group the document was genuinely absent; with M.D.D. Pharma it existed and had merely been uploaded incorrectly (the PDF overview instead of the ZIP file). A plea of equal treatment succeeds only for factually equal cases. Finally, the judgment shows how technical electronic submission through e-procurement has become: the difference between a truly signed ZIP file and a merely informative PDF overview helped decide the outcome here.
The lesson
When submitting electronically, do not attach the PDF overview of your power of attorney, but the signed ZIP file that e-procurement generates — that is the document carrying the digital signature; the overview is not. Ensure the signatory stays within the authority granted by the articles; if the contract exceeds the amount one director may sign alone, attach the second director’s power of attorney correctly. If you attack a competitor over a missing power of attorney, first check whether it truly did not exist or was merely uploaded incorrectly: an early signed file can make your plea fail on the facts. As an authority, remember that you may reject a tender without attached proof of the power of attorney but are not obliged to, and that you may take account of a power of attorney demonstrably predating the opening — provided you make that choice consistently and with reasons towards all bidders.
Ask yourself
When submitting an electronic tender, do you attach the correctly signed ZIP power-of-attorney file, and not merely the informative PDF overview? Does the signatory stay within the authority the articles grant, with a second signature or a power of attorney foreseen for amounts above their threshold? Before attacking a competitor over a missing power of attorney: is it established that it truly did not exist, or was it merely uploaded incorrectly before the opening? Do you realise, as an authority, that you may reject a tender without an attached power of attorney but need not — and that you must apply that choice equally to all bidders?
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 →