No board decision, no appeal — the CEO's signature alone is not enough
The Council of State dismisses VigotecAkatherm's challenge to the gas-detector contract awarded to Dräger without examining the merits, because the application was signed only by the managing director while the company's articles reserve the decision to sue to the board of directors.
What happened?
On 25 March 2015 the Federal Public Service for Internal Affairs (Civil Protection Directorate) published an open call for tenders for the supply and maintenance of gas detection devices. The contract — specifications II/MAT/A12-338-15 — was divided into two lots; lot 1 concerned oxygen and explosion meters. Document B, item 1, point 1.7.3 of the specifications laid down an 'essential requirement': battery recharge time of no more than 4 hours. Five bidders submitted offers for lot 1, including VigotecAkatherm and Dräger Safety Belgium. Offers were opened on 19 May 2015. VigotecAkatherm offered the Alert Max XTII device from BW Technologies; the offer stated a recharge time of 6 hours — two hours above the limit. On 23 November 2015 the Minister of Internal Affairs awarded the contract to Dräger Safety Belgium (X-am 2500 Ex-O2-CO device), described in the report as 'the only remaining compliant offer'. VigotecAkatherm was notified on 24 November and on 7 December 2015 filed an application combining annulment and suspension. Before the Council, Dräger as intervening party raised an objection: the application was inadmissible 'for lack of capacity'. The application had been signed by Hendrik De Visscher solely in his capacity as 'Managing Director' (afgevaardigd bestuurder). The only supporting document was a decision by De Visscher himself to bring the appeal — no resolution of the board. The Council examined VigotecAkatherm's articles. Article 17 provides that the company is 'validly bound vis-à-vis third parties by two directors acting jointly', one from each of categories A and B. Article 19 regulates daily management and gives delegated directors authority to 'act individually within the limits of daily management'. Councillor Johan Bovin made three points. First, the articles reserve the power to take legal action to the board of directors. Second, bringing an annulment action — as already ruled in judgment no. 113,490 of 10 December 2002 by the General Assembly — does not fall under 'daily management'. It is an exceptional procedural decision, not routine. Third, the representation power under article 17 (two directors jointly binding the company vis-à-vis third parties) does not help either: the Council of State is not a 'third party' towards which the company is 'bound' by filing such an action. Conclusion: 'The decision to file the present annulment action was therefore not taken by the legally competent body of the applicant.' The appeal is inadmissible. Since the contested decision is not amenable to annulment, the suspension request is also rejected. The Council never examines whether a recharge time of 6 hours actually breaches an essential requirement — that discussion never even arises.
Why does this matter?
For bidders this is a warning you rarely hear: you can lose a contract not because of your offer, but because of your own articles of association. Many SME articles give the managing director broad powers for 'daily management', but bringing an annulment action before the Council of State falls outside that scope under settled case law. Anyone who signs the application alone, without a board resolution or a joint signature consistent with the statutory representation rules, risks an inadmissible appeal. And in extreme-urgency or suspension cases every day counts — a second attempt with a proper decision may be impossible by then because the contract has already been performed. For bidder counsel this means: verify before filing that the right body has decided, and that proof of that decision is attached to the application.
The lesson
If as a bidder you want to challenge an award: have your lawyer review the articles of association before filing, and ensure the board of directors has formally resolved to bring the action. Attach a copy of that resolution to the application. A signature from 'the CEO' or 'the managing director' alone is not sufficient under most NV articles — bringing an annulment action does not fall under daily management. Skip this and the procedure stops at the door without the contract ever being examined on the merits.
Ask yourself
Open your company's articles of association. Does the chapter on 'external representation' or 'legal proceedings' state that the board of directors decides collegially to take legal action, or that two directors acting jointly bind the company? On your latest or planned appeal before the Council of State, do you have a formal board resolution (or an act signed by the required number of directors) attached as exhibit 2 to the application? If not, even a strong case on the merits is procedurally vulnerable.
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 →