Statutory representation isn't the same as 'daily management' — don't conflate the two when nullifying a bid
The Council of State suspends Charleroi's decision to declare the lowest bid (€195,200) null for 'unproven signature authority' because the city wrongly conflated 'external representation power' with 'daily management'.
What happened?
Charleroi tendered road-marking maintenance works. At opening, the temporary association TAROS-TRBA was by far the cheapest at €195,200 (excl. VAT) — TRAFIROAD bid €246,930, VIRAGE €209,413. After standard checks on RSZ and safety documents, on 19 October 2022 the city asked for extra info on signature authority. The bid had been signed by A.T. as 'permanent representative' of SRL ATACO (sole director of TAROS), and also via a power of attorney from P.S. (permanent representative of SA GSD INVESTS, managing director of TRBA). TAROS-TRBA resent the same documents. On 27 December 2022 Charleroi declared the bid null with this reasoning: 'a managing director is someone with daily management authority; signing a public-procurement offer doesn't fall within daily management; the bidder must show that it does in this specific case — which TAROS-TRBA hasn't done.' The Council of State dismantles this reasoning. Charleroi made a fundamental legal confusion: articles 5:73 (private limited co.) and 7:93 (public limited co.) of the Companies Code distinguish 'management power' from 'representation power'. Whoever has statutory representation power can bind the company — regardless of whether the act falls within daily management. Article 19 of TRBA's articles of association literally states: 'in all judicial and extrajudicial acts, the company is represented by a managing director.' That 'all' covers contracts beyond daily management too. So P.S. could validly grant power of attorney to A.T. For TAROS, the same story: article 12 of the articles + the Moniteur publication of 5/8 October 2020 show A.T. as 'permanent representative' of ATACO (sole director of TAROS) is authorised. Charleroi's late new arguments in their observations note (two directors at ATACO, no published coordinated TRBA articles) are dismissed as 'a posteriori explanation that cannot cure inadequate motivation'.
Why does this matter?
Contracting authorities often get nervous about representation power and seek 'absolute certainty'. That can lead to reflex nullification where the lowest bidder gets killed on a formality. This judgment says: use the right legal key. Representation power comes directly from the law (Companies Code) and the articles — not from a separate 'mandate to sign an offer'. For bidders this means a correctly assembled file (Moniteur extracts + articles + optionally a power of attorney) is sufficient — you don't have to prove 'daily management'.
The lesson
If as contracting authority you want to reject a signature, first check whether the bidder relies on article 5:73 (BV) or 7:93 (NV) — general representation power. That overrides daily management and covers all judicial and extrajudicial acts. Only if you've truly ruled that out can you fall back on the 'daily management' debate. And: new arguments in your observations note cannot save a defective original motivation.
Ask yourself
If you want to nullify a bid for 'unproven signature authority': has the bidder produced a statutory article (type 'is represented in all judicial and extrajudicial acts by...') ? If yes, that's general representation power that covers bid signing — case closed.
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 →