A power of attorney need not be signed electronically: the Council of State suspends the award of the R30 study contract that Tractebel lost over a photo scan
The Roads and Traffic Agency rejected Tractebel Engineering’s electronically submitted and validly e-signed tender for the R30 study contract in Bruges solely because the attached power of attorney bore a scanned rather than an electronic signature — a requirement found nowhere in the legislation or the tender documents — whereupon the Council of State suspended the award to Mint under extreme urgency.
What happened?
In late 2012 the Flemish Roads and Traffic Agency, West Flanders division, launched a general call for tenders for a study contract: drawing up a vision note for the redesign of the Bruges ring road R30 between kilometre markers 4.200 and 6.940, estimated at 153,488.50 euros including VAT, with price (60 points) and approach and vision (40 points) as award criteria. At the opening on 30 November 2012 four tenders were on the table, all submitted electronically via e-tendering. In the award report of 1 February 2013 the tenders of Grontmij, Mint and Arcadis were found regular, but Tractebel Engineering’s was declared formally irregular: the electronically submitted power of attorney had not been electronically signed by the principal, so the tender was allegedly not validly signed. On 1 March 2013 the contract was awarded to Mint. Tractebel went to the Council of State. The Region’s objection — Tractebel lacked an interest because Grontmij had bid even lower at 146,886.12 euros — was dismissed: the contested decision deprived Tractebel of the chance to perform the contract, and that suffices. On the merits, the Council found that the tender itself had indeed been electronically signed by Ewald Wauters and Jan Dumez, and that annex 5 to the tender duly contained the board’s delegation rules of 14 September 2012 plus a power of attorney of 24 September 2012 by which managing director Georges Cornet and Hein Dirix authorised both signatories to sign service contracts up to 300,000 euros — with their scanned signatures. The Council found no statutory, regulatory or tender-document provision requiring that a power of attorney attached to an electronic tender be electronically signed in turn. Moreover, such a requirement would render the intervention of authorised agents — a possibility expressly provided for by the rules — effectively pointless. The broader arguments the Region raised only in its procedural note (that the tender form did not show on whose behalf the signatories acted) were brushed aside as inadmissible ex-post reasoning. At the hearing it emerged that the Region was following the position of the Finance Inspectorate and saw the case as a test case for powers of attorney in an electronic environment — although it had meanwhile already concluded the contract with Mint, which the Council found ‘puzzling’. The single plea was held serious and the suspension under extreme urgency was ordered.
Why does this matter?
This judgment draws a line of principle in the early years of e-tendering: the substantial formality of signature applies to the tender itself, not to every document accompanying it. A contracting authority that wants to attach the sanction of nullity to a formal requirement must be able to point to that requirement somewhere — in the law, in the implementing decree or in its own tender documents. If it exists nowhere, the rejection is unlawful, however consistently it is applied and however firmly the Finance Inspectorate endorses it. The judgment is also a lesson in procedural discipline: the Region tried to prop up its decision afterwards with additional arguments about the signatories’ authority, but the Council only considers the reasons stated in the decision itself or in the administrative file. The treatment of the interest objection is at least as useful for practice: the fact that a third bidder was cheaper does not deprive a rejected bidder of its interest — it suffices that the unlawful rejection took away its chance at the contract. Finally, the case shows how risky it is to fight out a question of principle on the back of a live award: whoever sees a ‘test case’ but meanwhile signs the contract undermines its own position.
The lesson
For contracting authorities: reject a tender only on formal requirements you can point to in the rules or your own tender documents. If you want powers of attorney signed electronically, write it expressly into the specifications — and consider that such a demand largely hollows out the figure of the authorised agent. State all reasons in the decision itself: what you raise only in your procedural note does not count. And do not conclude the contract while the standstill period runs or an extreme-urgency procedure looms. For bidders: structure your evidence of authority as Tractebel did — published delegation rules plus a concrete power of attorney with clear amounts — and you will stand strong when an authority stumbles over form. If your tender is rejected for a formal defect prescribed nowhere, the extreme-urgency procedure is a fast and effective weapon: here less than a month passed between notification and suspension.
Ask yourself
For every formal requirement on which you reject a tender, can you cite the precise statutory or tender-document provision imposing it? Is every ground for rejection stated in the award decision itself, or are you counting on supplementing it later in the proceedings? As a bidder, do you know that a scanned signature on an attached power of attorney does not in itself render your electronically signed tender substantially irregular? And do you realise that your interest in a challenge does not lapse because another bidder was cheaper than you?
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 →