Signed eight days too early: an award to an attorneys' temporary association annulled because the director-general's delegation was published in the Official Gazette only six days later
The Council of State annuls the award of debt-recovery services by intercommunale RESA because the director-general signed on 21 June 2019 on the basis of a delegation that was only published in the Belgian Official Gazette on 27 June 2019 — and was therefore not opposable to the rejected bidder at the moment of the award.
What happened?
On 21 June 2019, NV RESA (a Walloon intercommunale for grid management) awards the 'recouvrement de créances – phase amiable' contract to a temporary association of two law firms (SRL Paul Tintin and SRL Sinatra G.). The offer of bailiff Alain Bordet is declared irregular. Bordet files an annulment action on 22 August 2019 and quickly wins a suspension: judgment no. 245.254 of 31 July 2019. Four years later, in the merits proceedings, the first auditor of the Council of State raises ex officio a public-order ground: the director-general of RESA had no valid delegation to sign the award. The auditor's reasoning, followed by the Council: the delegation act – the 'règlement relatif aux pouvoirs délégués et mandats' of the board of directors of 29 May 2019 – conferred daily management on the director-general and provided that all acts under 10 million euro were presumed to fall within daily management, including public procurement. But that act was only published in the Belgian Official Gazette on 27 June 2019 – six days after the contested award. Moreover, on 4 October 2019, an order of the Walloon Minister for Local Government was published annulling an extract from that same regulation (the list of presumptions of daily management). RESA defended itself with a remarkable argument: the award decision itself stated that its enforceability was deferred, effectively until 27 June (the date of transmission to the supervisory authority). On that date, the delegation act had been published. So, RESA reasoned, at the moment the award started to produce legal effects, the delegation was opposable. The Council of State rejects this argument head-on: the competence of the author of an act is assessed at the moment of adoption of the act, not at the moment when it becomes enforceable or starts producing effects. On 21 June 2019, the delegation act was not opposable to Bordet (publication appears only six days later), so the director-general was not competent to sign the award. The ground is well-founded. The award is annulled, with procedural indemnity charged to RESA. The other grounds are not examined, since an annulment for incompetence is a 'full' annulment.
Why does this matter?
For rejected bidders, this is a valuable ground that the Council of State raises ex officio, even if you did not raise it yourself. The lesson: always check who signed the award decision and whether that person was actually competent at the moment of signing. For intercommunales and local authorities, this is a reminder: delegation of powers is not 'internally' achieved by a simple administrative decision – it must also be timely published in the Belgian Official Gazette to be opposable to third parties. And 'deferring enforceability' does not work to make that deadline retroactively.
The lesson
If you lose, always check three things about the award decision: (1) who signed it? (2) on the basis of which delegation? (3) was that delegation already published in the Belgian Official Gazette or supervisory-approved on the date of signing? For intercommunales and local authorities, publication in the Official Gazette is, under article 1523-18, §1 of the Walloon Code of Local Democracy and Decentralization, a condition for opposability – if the delegation appeared only later, the award was taken by an incompetent author and you can challenge it on that basis.
Ask yourself
You have lost an award. Request in your petition the full delegation chain: who signed, on which delegation act, date of that act, date of publication in the Official Gazette, date of any supervisory approval or annulment. Was there less than one working day between adoption of the delegation and the award decision? Or was the delegation published after the award? Then you have a ready-made ex officio ground.
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 →