One signature short — and no second chance, even when a competitor got one
BUUR lost a contract worth nearly EUR 200,000 because its tender was signed by only one delegated director where the company's articles required two — and the Council ruled the awarding authority was under no obligation to allow regularisation, even though it had granted regularisation to another bidder at an earlier stage.
What happened?
The Province of Limburg launched an interesting contract: drawing up a spatial vision and strategy for the 'innovative mobility network grafted onto the Kolenspoor' — the connection between the coal harbours of Beringen and Lummen and the Meuse at Maasmechelen, with extensions to Leopoldsburg and Maaseik. The contract (specification 2018N034634) was published in May 2018 through a simplified negotiated procedure with prior publication. Seven bidders submitted tenders on time, including CVBA BUUR (EUR 199,120 excl. VAT) and NV Tractebel Engineering (EUR 145,695 excl. VAT). During the regularity check the awarding authority noticed something odd in BUUR's tender: it had been signed only by Johan Van Reeth, delegated director. BUUR's articles of association (articles 18-21) however required that the company be bound, for contracts above EUR 100,000, by two directors acting jointly. With a tender amount of EUR 199,120, BUUR did not meet that requirement. On 23 August 2018 the provincial deputation awarded the contract to Tractebel. BUUR challenged this through an extreme-urgency appeal and submitted a 'private power of attorney' dated 17 December 2015. That power of attorney — BUUR argued — gave each delegated director individually the authority to sign tenders up to EUR 250,000. BUUR raised three arguments: first, they had already submitted that power of attorney to the Province of Limburg in September 2016 in an earlier file; second, the awarding authority had asked another bidder (THV Vectris-Uhasselt-Plus Office Architects) twice to provide additional references; third, the specification gave the awarding authority a choice ('without any obligation to do so') whether or not to reject in case of missing proof of signing authority. The Council of State dismissed the appeal for three reasons, each worth noting: **One:** the tender itself contained no document showing that Van Reeth was acting as a special proxy. The articles and the appointment decisions alone did not allow that conclusion. 'It seems primarily up to her as a bidder to draw up her tender carefully', the Council noted. **Two:** a previously submitted power of attorney (in another file, two years earlier) does not oblige the awarding authority to take it spontaneously into account in every new procedure — especially since the board decision had neither been published nor officially deposited with the province. **Three:** the equal-treatment argument failed entirely. THV Vectris-Uhasselt had been rejected during the examination of the selection conditions (references), while BUUR's tender failed during the regularity check. According to the Council these are two separate phases, and a regularisation in the selection phase is not comparable with regularisation of representation authority in the regularity phase. The single ground was not serious. The emergency appeal was dismissed.
Why does this matter?
For bidders this judgment makes clear that signing diligence sits entirely with them. A power of attorney that you 'have lying around somewhere' will not save you — anything that has to prove you signed validly must be in that specific tender. And a signature by one delegated director, while your articles require two, is a fatal mistake — not simply curable. For awarding authorities the judgment confirms that they hold discretion to allow or refuse regularisation, provided the specification regulates this. And crucially: regularisation of selection conditions is legally a different beast than regularisation of regularity issues. One concerns the bidder's suitability, the other the tender itself — and that distinction holds, including in equal-treatment debates.
The lesson
When preparing a tender, always check your own articles of association for signature requirements — and not just for the running file. How many signatures are required above which threshold? If you sign with one director, attach a valid power of attorney; do not just refer to 'something we once submitted'. And if you later want to argue that another bidder got a regularisation chance: first check in which phase that regularisation took place. The Council of State treats selection and regularity as separate worlds.
Ask yourself
Before submitting a tender: have you pulled out your own articles of association? Does the number of required signatures match this specific amount? Is the full proof of representation authority included with the tender itself — or are you relying on something 'we already submitted in an earlier file'? That last one is not a safety net.
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 →