A publication error in the Belgian Official Gazette ('annual meeting' instead of 'board of directors') does not invalidate an offer — what counts is the actual mandate
The Council of State refuses to suspend the City of Aalst's award of 5.2 million euros of sewerage works to the joint venture Audenaert-Audebo, because an erroneously drafted Official Gazette extract does not undo the fact that Samuel Auquier's power of attorney had been granted — by the competent body, the board of directors of Audebo NV — long before the offer was filed.
What happened?
In May–June 2016 the City of Aalst opened a public works tender for road and sewerage works in the Tinnenhoek-Terhagen area, estimated at 5,201,836.47 euro excluding VAT. Four bids were submitted in August 2016. Aclagro NV came second at 5,892,704.94 euro VAT included; the joint venture Audenaert-Audebo was first at 5,671,089.09 euro. On 12 September 2016 the Mayor and Aldermen awarded the contract to the joint venture. Aclagro filed an extreme-urgency suspension on a single core ground: the joint venture's offer had not been validly signed and had to be declared substantively irregular. Reason: the offer included an extract from the Belgian Official Gazette of 12 July 2011 stating literally that 'the annual meeting' of Audebo NV — the general assembly — had appointed Samuel Auquier as a special agent to sign tenders. Under article 522 of the Companies Code that body has no such power. The mandate would therefore be void, the offer substantively irregular (article 95 of the Royal Decree on the placement of public contracts of 15 July 2011), and the award would breach the equality principle. Aclagro added that any later mandate from the board of directors could not retroactively repair this. The intervening parties produced as exhibit 4 the minutes of Audebo's board of directors of 4 March 2011 — a meeting starting at 19h30, thirty minutes after the general assembly that started at 19h00. The two sets of minutes together showed that (a) the general assembly had only re-appointed the auditor (first item in the gazette), and (b) the board of directors, not the general assembly, had appointed Samuel Auquier and Geert Boone as special agents (second item). The gazette extract had not distinguished between the two bodies and had wrongly suggested that everything was decided by the annual meeting — a drafting mistake in the publication, not in the governance. The Council held that this was enough. The mandate existed on 4 March 2011, granted by the competent body, well before the offer was filed. The fact that the proof was first produced before the Council and not attached to the offer is not absolute nullity: the Council referred to its earlier rulings Tractebel Engineering (no. 223.253 of 23 April 2013) and cvba Vooruit (no. 226.982 of 31 March 2014). The applicant did not contest the authenticity of exhibit 4 nor allege forgery. The Council also distinguished Office Depot International (no. 229.829 of 16 January 2015), where the special mandate had been granted only after the bids were opened — here it had existed for years. No substantive irregularity, hence no breach of equality: no improperly signed offer was compared with properly signed ones. Suspension dismissed. Aclagro pays 200 euro filing fee and 700 euro procedural indemnity to the City; the intervening parties pay 300 euro each for their intervention.
Why does this matter?
An irregularity attack on a winner's offer is often built around formal documents — a gazette extract, a power of attorney, a signature. This judgment shows how the Council evaluates such an attack: not on the external paperwork but on the actual decision of the competent body at the time of signing. A drafting error in a publication ('annual meeting' instead of 'board of directors') is not a substantive irregularity if the minutes of the actual decision-making body can be produced. For bidders considering a challenge based on a mandate issue: dig deeper than the gazette extract. Request the minutes, or prove they don't exist — mere ambiguity in the publication does not suffice. For bidders who themselves sign through an agent: ensure the minutes of the competent body (the board of directors, not the general assembly, for an NV) exist and are kept. For contracting authorities: an offer with a messy gazette extract does not have to be excluded immediately — first request the underlying documents before filing an irregularity finding.
The lesson
Anyone challenging an offer because the mandate 'doesn't exist' must show that the mandate was genuinely missing — not merely that the published extract is sloppy. The Council looks at the actual decision of the competent body on the relevant date, not at the gazette wording. For bidders signing through an agent: have your board of directors formally decide on the appointment of special agents for tenders, record it in the board minutes (not the general assembly!), and keep those minutes alongside the gazette extract. Attach them to the offer as article 82 §3 of the Royal Decree requires — even though a missing-from-offer-but-existing mandate is not absolute nullity (Tractebel, Vooruit), it is an unnecessary battlefield. For contracting authorities: when in doubt about signing authority, ask the bidder to produce the underlying minutes before deciding on regularity.
Ask yourself
Is your offer signed by an agent on behalf of a NV? Check: does a formal decision of the board of directors (not the general assembly!) exist appointing that person as a special agent to sign tenders? Is it in the board minutes and dated before your offer's filing date? Is the gazette extract you attach accurate — does it correctly state which body decided? As a losing bidder: before you challenge on a mandate issue, request inspection of the documents attached to the winner's offer AND the underlying minutes — a sloppy extract is not enough on its own.
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 →