Award of €196,000 contract by the Director-General annulled — no delegation for decisions above €139,000
The Council of State annuls the Agence du Numérique's award of the 'Digital Commerce 2021' contract to SNI asbl (€196,000 incl. VAT) on a ground raised by the auditor ex officio: the Director-General was not competent to award a contract above €139,000 excl. VAT, and the Board of Directors had never taken the decision.
What happened?
The Agence du Numérique (Walloon digital agency) published on 26 November 2020 a notice for the 'Digital Commerce 2021' training contract, via negotiated procedure with prior publication, estimated value €165,000 excl. VAT. Four tenderers submitted offers via e-tendering. Retis SRL — a consultancy already active since 2015 with Walloon digital agencies — discovered the notice by chance on 11 December 2020, four days before the deadline. Retis found that (a) the specifications could not be downloaded via the published hyperlink, (b) the notice used a wrong CPV code, (c) the notice was incomplete (jumped from point 2.2 to 5, no selection or award criteria). Retis filed a 'candidature letter' rather than a complete offer. On 31 December 2020 the Director-General signed an award decision: Retis' offer was declared irregular (missing methodology, market approach, fixed price), and the contract was awarded to SNI asbl for a maximum of €196,000 excl. VAT. Retis filed an annulment appeal. The auditor raised ex officio the ground that the Director-General lacked competence. Analysis of the statutes showed the Board of Directors held decision power with possible delegation for daily management; the Director-General only represented the agency for daily management acts. The internal 'Procedure achat' (dated September 2021, AFTER the contested decision) required Board approval for decisions above €139,000 excl. VAT. The agency could not prove pre-existing delegation. The comparison report was signed by the Director-General, a board member and the chairman, but evaluated only regular offers against award criteria — it did not decide on qualitative selection or irregularity. The Council annulled the decision. Costs: €200 filing fee, €20 contribution, €700 procedural indemnity to Retis.
Why does this matter?
This ruling draws a hard line around competence within contracting authorities. A Director-General cannot just make award decisions above the delegation ceiling of the internal procurement procedure. The authority must demonstrate with which statutory or regulatory act competence was delegated, and that the delegation was opposable to third parties. The internal procedure produced by AdN in defense dated from AFTER the contested decision — obviously unhelpful. Equally important: this competence ground was raised ex officio by the auditor. As a tenderer, you may benefit from a competence flaw without raising it yourself — but don't count on it. A solid annulment appeal should always raise the competence question.
The lesson
As a tenderer challenging an award: always ask who signed the award decision, under what delegation, and whether that delegation was opposable to third parties at the time. An award above the internal delegation ceiling, not ratified by the competent body, is potentially voidable. As a contracting authority: ensure your delegation framework is in writing, published and opposable before any award decision. Verify per contract whether the amount exceeds the delegation ceiling. A post-factum adopted 'procurement procedure' does not help. Don't confuse the signing of a comparison report with the award decision — a report that only evaluates regular offers does not qualify as a full award decision.
Ask yourself
Does the amount of this contract exceed the delegation ceiling of our internal procurement procedure? Which statutory or regulatory act proves the signatory's competence? Is that delegation published or made known to third parties? Did the competent body (board/college) actually take the award decision — and is that in the minutes?
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 →