'Clarifying' a signature mandate after the opening can be done — but if the award decision is silent about what you received, you lose the award
The Belgian Council of State suspends Defence's award of a VSAT satellite housing to Metracom because, although the mandate of the signatory had been 'clarified' after the opening of bids, the award decision did not explain what documents were received — and those documents appeared to contradict an earlier 'acte de désignation du signataire' filed by Metracom in a previous proceeding.
What happened?
In October 2019 Belgian Defence launched a contract for 13 deployable VSAT terminals (lot 1) and a fixed VSAT housing for the anchor station in Marche-en-Famenne (lot 2), with a maintenance agreement covering the lifespan of the equipment. Open procedure, lowest price as the only award criterion. Five companies bid for lot 2, with prices excl. VAT: Marlink 602,500 EUR, Metracom 883,620 EUR, Network Innovations 919,465 EUR, Telespazio 990,657 EUR, L3Harris 1,246,653 EUR. In the first award decision of 20 December 2019, Metracom's bid was declared absolutely null because the submission report lacked a qualified electronic signature, and the contract was provisionally awarded to Network Innovations. Metracom and another bidder filed for suspension before the Council of State, after which Defence withdrew that first decision on 4 March 2020 and reopened the procedure. The new analysis restarted from the opening of 25 November 2019. On 13 March 2020 Defence asked Metracom for a clarification about the mandate of the signatory of the submission report, Nicolas Mercier — because the articles of association and the KBis extracts did not show that he had been mandated by managing director Jean-Paul Steinitz. Metracom replied on 18 March with a 'mandat pour signature' dated 30 September 2019 and an email from ChamberSign France of 8 November 2019. On 29 June 2020 Defence awarded lot 1 to Network Innovations and on 10 September 2020 lot 2 to Metracom (884,000 EUR) — the lowest compliant offer after a new round of regularisations. Network Innovations filed an extreme-urgency suspension on 25 September. Its only ground: the award decision nowhere explains the content of Metracom's 'clarifications', and the documents it knew about were contradictory. In an earlier proceeding (A. 230.106/VI-21.702), Metracom had filed an 'acte de désignation du signataire' designating Steinitz himself — not Mercier — as the person authorised to sign the bid. Moreover, the 'mandat pour signature' of 30 September 2019 was dated before the procedure even started: Metracom itself indicated that the signing took place only on 30 October 2019 and that the 30 September date was 'clearly a purely material error'. The Council of State (12th chamber, presiding councillor Patricia De Somere) found that Defence had declared Metracom's bid compliant without sufficiently motivating that decision and without a thorough examination of the mandate. The argument that the documents from the earlier proceeding 'served only to substantiate the qualified signature' was unconvincing in light of the content of the 'acte de désignation du signataire'. Against Defence's objection that Network Innovations had also failed to attach a power of attorney to its own bid, the Council answered that this objection is only accepted when the irregularity of the applicant's own bid is 'incontestable' — not when it must itself be the subject of a new investigation. The auditor had advised against suspension. Result: the award decision of 10 September 2020 was suspended; Defence had to redo the regularity examination of the three remaining bids from the opening of 25 November 2019. Costs reserved.
Why does this matter?
When a contracting authority asks for a clarification under article 66 §3 of the 2016 Act and then accepts a bid as compliant, the award decision itself must show what was received and why those documents are sufficient. Not 'we requested clarifications, they were received, conclusion: compliant' — but concretely: which documents, which dates, how they refute the original finding, and how they fit with what the bidder filed earlier. For bid managers this is leverage: if you see that a competitor 'corrected' a mandate after opening but the award decision says nothing concrete, you have a serious ground at hand. For contracting authorities the message is the reverse: inserting a 'clarification' does not solve the problem — you must also write it out in the motivation. A contradiction between documents the bidder filed in different proceedings forces a documented investigation, not a blank acceptance.
The lesson
If as a competitor you see an award decision stating 'clarifications were requested and received, bid is compliant' without describing the content of those clarifications: that is a formal motivation defect. Immediately ask, under art. 29 §2 of the 2013 Information Act, for the supporting documents, compare them with what the bidder filed in other proceedings or in its company register extracts, and look for contradictions — especially regarding dates, signatories and mandates. As a contracting authority: cite explicitly in your analysis document what you received, what date it bears, how it can be reconciled with the irregularity initially found. 'Clarifications received under article 66 §3' is not a motivation, it is a procedural reference.
Ask yourself
If the award decision of a contract you lost mentions that the winner 'regularised' or 'clarified' its bid after opening: does it contain more than two sentences specifically describing which documents were received and how they remove the original irregularity? If not — extreme-urgency or ordinary suspension on the ground of breach of the duty to give reasons and of the duty of care.
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 →