Attaching outdated articles of association to your bid is having your own bid declared void — and the contracting authority is not required to protect you against it
The Council of State rejects Blue-Mobility's extreme-urgency action against the City of Ghent's award of the bike-sharing contract to vzw Bycykel, because Blue-Mobility's bid turned out to be signed by a proxy whose authority came from a director who, under the amended — but not attached — articles of association, had no power to represent the company.
What happened?
On 23 November 2015 the Ghent municipal council decides to launch a tender for the purchase and operation of a 'back-to-one' bike-sharing system (with fixed docks). The contract is published nationally and at EU level and awarded under an open procedure on four award criteria: price (50 points), technical quality of the bike (25), management system (15) and innovation/sustainability (10). At the opening session of 28 June 2016 two bidders submit: NV Blue-Mobility and vzw Bycykel. Both are selected, both bids are found regular. In the award report (dated 5 October 2016, initially unsigned) Blue-Mobility scores better on price, but Bycykel wins on all other criteria — final score 89.78 against 84.88. The College of Mayor and Aldermen approves the award to Bycykel on 13 October 2016. Blue-Mobility goes to the Council of State in extreme urgency. Only then does the City of Ghent raise an inadmissibility objection: Blue-Mobility's bid was substantially irregular because it had not been signed by a competent person. The facts — reconstructed by chamber president Dierk Verbiest from the confidentially submitted bid — are these: the bid was signed electronically on 28 June 2016 by Deborah Anné, proxy holder. Two special powers of attorney of 27 June 2016 were attached, one from Cédric Blanckaert as 'president' and one from Koen Van Lancker as 'director'. The articles of association were also attached, but in the version published in the annexes to the Belgian Official Gazette of 11 January 2011, stating that the company is represented by 'two directors acting jointly'. What was missing: a later publication in the Belgian Official Gazette of 4 December 2014, in which the articles of association were substantially amended. From then on the company had to be represented 'necessarily' by the President and Vice-President of the board jointly. The Vice-President was appointed alternately from class A or class C directors, for one year. Cédric Blanckaert was appointed President on 13 June 2016; Koen Van Lancker was appointed director class B on 27 May 2016 — and could therefore never be Vice-President, since that role went only to class A or C. Result: Van Lancker's power of attorney to Anné was unusable. Anné therefore signed without the statutorily required representative authority. The Council of State holds that this is equivalent to lacking a signature, and that under article 51, §2 and article 95, §4 of the Royal Decree on Award the bid is substantially irregular and void. A bidder with a void bid has no interest in challenging the award to a competitor — unless he shows that the contract could not lawfully be awarded to anyone, which is not the case here. Blue-Mobility argues further that the City of Ghent did not itself notice the irregularity in the contested decision and so cannot raise it for the first time before the Council. The Council counters: this omission cannot be held against the City as carelessness, because on the basis of the attached — outdated — articles of association and two seemingly regular powers of attorney, the City could not have known about the 2014 amendment and Van Lancker's lack of authority without an in-depth investigation. A new argument raised at the hearing about electronic certification is excluded as untimely. Application rejected, Blue-Mobility ordered to pay 200 euros docket fee and 700 euros procedural indemnity.
Why does this matter?
Anyone bidding through a proxy lives or dies by the attached powers of attorney and articles of association. Attaching an outdated extract from the Belgian Official Gazette to your bid, while your articles have meanwhile been substantially amended, is not a formality you can fix afterwards — it makes your bid void. This affects in particular companies with class-based directors, one-year mandates, or articles requiring specific functions (president, vice-president, managing director) for representative actions. And critically: the contracting authority may rely on what you submit. It does not have to investigate whether more recent publications exist. The decisive point is that the contracting authority is not even careless if it overlooks the irregularity — it can still raise it later, with full procedural effect.
The lesson
For every bid signed by a proxy: before submission, retrieve the most recent publication in the annexes to the Belgian Official Gazette (not just the founding extract), check whether the directors granting the power of attorney were statutorily competent on the date of the power, and attach that current publication to the bid. If you have class-based directors or limited-duration mandates (e.g. one-year vice-presidency): double-check that the specific director holds that role on the date of signature. When in doubt, have the bid signed directly by directors who are competent under the articles themselves, without intermediate powers of attorney.
Ask yourself
Open the articles of association attached to your last bid and check when the most recent version was published in the Belgian Official Gazette. Compare that with the current board composition shown in a recent CBE extract. Do the names, classes and functions match the statutory requirements for representation? If not, redo the power of attorney or have the bid signed directly by a statutorily competent director.
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 →