A director who excludes a tender from a European Design & Build contract — but the delegation decree only covers routine management
The Council of State suspends a decision by a City of Ghent director to exclude a tender from a Design & Build procedure for a warehouse, because the delegation decree only delegates authority for routine management and contracts under €30,000 — while this contract exceeds European thresholds.
What happened?
The City of Ghent launched a Design & Build contract for a storage warehouse ('Depot Lourdeshoek'), using a competitive procedure with negotiation published at European level. Three candidates were selected from six applicants. On the submission deadline, the applicant's offer did not appear on the e-Procurement platform due to technical issues. After weeks of correspondence, the director of FM Theme Buildings sent a definitive decision excluding the offer. The Council of State raised the competence question ex officio: was this director actually authorised to take this decision? The city cited a 2018 delegation decree delegating 'decisions in the award procedure (price justification, additional info…)' to department heads. The Council found this delegation was framed as routine management for contracts under €30,000, involving 'administrative simplicity' and 'limited appreciation'. The examples cited (price verification, additional info) are preparatory acts, not definitive decisions excluding a tenderer from a multimillion-euro European contract. The delegation appeared to be general and unlimited — which is prima facie unlawful. The suspension was granted.
Why does this matter?
This ruling exposes a widespread trap in local government procurement: old delegation decrees applied far more broadly than they legally cover. The incompetence of the author of an administrative act is a matter of public order that the Council of State may raise ex officio. For local authorities, this is a wake-up call to verify whether their delegation decrees actually cover the decisions being taken under them.
The lesson
For local authorities: verify that your delegation decrees actually cover what you're using them for. A delegation framed as routine management under €30,000 does not suffice to exclude a tenderer from a contract above European thresholds. For tenderers: if you're excluded by someone who is not a member of the college of mayor and aldermen, check whether a valid delegation exists that covers contracts of this magnitude.
Ask yourself
Are you taking procurement decisions above European thresholds based on a general delegation decree from years ago? Check whether it actually delegates that authority — there's a real chance it only covers routine management and small amounts.
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 →