Your offer was 915 euros cheaper than the winner — and you still lose your suspension over one missing line above the signature
Dranken Pede comes within 916 euros of Inbev Belgium's winning offer for a three-year water contract at Aalst's public welfare centre, but loses its suspension without any review on the merits: the offer was signed by 'Mark Pede in his capacity as director', whereas only the company bvba Pede was statutorily authorised to bind the bidder — a substantial and unfixable defect that voids the offer and removes any standing.
What happened?
On 6 January 2016, the Aalst Public Centre for Social Welfare (OCMW) publishes an open call for tenders for the on-call supply of drinks for three years — tender 2015/020. The contract is split into two lots: lot 1 for mineral and spring water, lot 2 for soft drinks, beer and wine. The specs require, among other things, a total mineral salt content not exceeding 500 mg/l and the absence of nitrites. Five bids open on 23 February 2016 for lot 1: Inbev Belgium at 63,956.16 euros (brand Léberg), Dranken Pede at 64,872 euros (brand Ginstbronnen), Vandenameele at 72,694.80, Alken-Maes at 125,928 and Horeca Logistic Services at 128,007.72. The gap between Inbev and Pede: exactly 915.84 euros over three years. The evaluation report of 29 March 2016 finds all bidders compliant — including Pede. Inbev's label states 530 mg/l, but lab analyses of 10 April and 26 October 2015 (436 mg/l and 361 mg/l respectively) show actual content below the spec ceiling. On 17 May 2016 OCMW approves the report and awards lot 1 to Inbev. On 6 June 2016 Pede files an extreme-urgency suspension. The respondent then drops the bomb: it raises an inadmissibility plea — Pede's offer was not validly signed. The Belgian Official Gazette of 14 July 1998 and the appointment notices of 22 November 2011 and 29 April 2016 establish the following. Pede NV has a single-signature clause in favour of its managing director. The board comprises three members: bvba Pede (with permanent representative Mark Pede), Luc Pede and Mark Pede in his own name. But the managing director is bvba Pede — not Mark Pede personally. Pede NV's offer is signed by 'Mark Pede in his capacity as director'. No reference to bvba Pede, no mention that he was acting as that bvba's permanent representative. Article 62 of the Companies Code is not optional: 'in all instruments binding a company, immediately before or after the signature of the person representing the company, the capacity in which he is acting must be stated'. The cascading capacity — natural person → permanent representative → bvba → managing director of the NV — cannot be presumed; it must appear on the document. Result: the offer was not signed by the person authorised under Article 51, §2 of the Royal Decree on procurement procedures of 15 July 2011 to bind the bidder. That is a substantial and unfixable defect. The offer is legally worthless and OCMW should have rejected it. The fact that OCMW had not noticed and had declared Pede compliant changes nothing. Councillor Johan Bovin draws the logical conclusion: a bidder with a void offer cannot be awarded the contract regardless, and so has no standing to seek suspension. The substantive pleas — Pede had challenged the acceptance of Léberg despite the 530 mg/l label — are never reviewed. Pede pays 200 euros court fee and 700 euros procedural compensation.
Why does this matter?
Anyone running an operational company through a holding or patrimony entity — a common structure in Belgian family businesses — faces a specific signature risk. The Companies Code (since 2019 the Code of Companies and Associations, articles 2:51 and 2:55 substantively the same) requires every instrument to spell out the cascading capacity: not 'Mark Pede, director', but 'bvba Pede, managing director of NV X, represented by its permanent representative Mark Pede'. Sloppiness here can void your offer in retrospect — an unfixable defect. The contracting authority must reject it. And if you relied on the authority's earlier finding of compliance, you are not protected: in a suspension or annulment, the other side can still raise the defect, and the Council of State will follow.
The lesson
For every offer issued by a company whose director or managing director is itself a legal entity: spell out the full hierarchy above the signature. For example: 'NV X, represented by bvba Y, managing director, represented by its permanent representative Z'. Also check whether the authority clause in your articles — single or multiple signature — actually empowers a natural-person director, or only the legal-person director. And attach the latest extract from the corporate registry or Official Gazette to the offer: that pre-empts any later speculation by opposing counsel about who could bind whom.
Ask yourself
Pull up your last submitted offer. Who signed, in what capacity is that noted, and does it match exactly the authority arrangement in your articles and the latest publication in the Belgian Official Gazette? If you hesitate over what 'exactly' means, your offer is an Article-62 risk worth running past your notary or counsel today — far cheaper than a lost suspension.
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 →