Whoever signs the bid must be authorised at the moment of submission: a power of attorney surfacing only after the opening does not save the day
Office Depot International saw its bid for a three-year framework agreement for office supplies declared irregular because it had been electronically signed by someone without signing authority, and the Council of State dismissed its extreme-urgency action because the plea — that a power of attorney handed in only after the opening, undated, would retroactively create a valid commitment — runs counter to settled case law and doctrine and is therefore not serious.
What happened?
The Flemish Community, Facility Management Agency, launched a general call for tenders for supplies: the delivery of office supplies on call. It was a framework agreement with a single undertaking for three years, published in the Bulletin of Awards of 28 May 2013 and in the Official Journal of the EU of 31 May 2013, under tender documents 2013/AFM/OO/22412. Bids had to be submitted electronically via the e-tendering application, and the tender documents expressly provided that whoever signs the bid electronically must be authorised to do so by the statutes or a power of attorney, and that the documents proving the signing authority must be attached to the bid. At the opening on 9 July 2013 three bids were submitted, including those of Office Depot International and Staples Belgium. On formal review, the authority found that Office Depot’s bid had been electronically signed by Ms V.V.B., whereas the signing authority, according to the documents, lay with Mr F.B. By email of 30 September and letter of 1 October 2013 the authority asked for the latest coordinated version of the statutes or confirmation that it was attached. Office Depot replied on 9 October 2013 that the attached extract from the Official Gazette was the latest version, and provided an undated ‘one-off power of attorney’ in which director F.B. gave V.V.B. the authority to sign the electronic bid on 9 July 2013. In the award report of 18 October 2013 the bid was declared formally irregular: the power of attorney had been provided only after the opening, had no fixed date through an authentic instrument, and its existence at the moment of the opening could therefore not be established. The contract was proposed and, by decision of 28 October 2013 of the administrator-general, awarded to Staples Belgium; Office Depot was informed by registered letter of 31 October 2013. In its extreme-urgency action Office Depot invoked, among others, articles 1984, 1985 and 1998 of the Civil Code and articles 90, 94 and 110 of the Royal Decree of 8 January 1996: through ratification, with retroactive effect (article 1988 of the Civil Code), the commitment would have been beyond dispute at the moment of submission. Office Depot itself admitted that both the doctrine and judgment no. 213.959 of 17 June 2011 hold the opposite view — that a power of attorney to sign a bid may not be given post factum — and asked the Council, in essence, to depart in an extreme-urgency procedure from that earlier case law on the merits. The Council did not follow. The Auditor’s office did not endorse Office Depot’s position and pointed out that no instrument establishing V.V.B.’s authority had been attached to the bid, that article 94 of the Royal Decree of 8 January 1996 aims precisely at that certainty, and that accepting the argument would deprive the authority of any certainty about the bidder’s commitments. The plea, said the Council, does not show the high degree of evidence required in summary proceedings, and certainly not to alter an earlier ruling on the merits. The suspension action was dismissed; Staples Belgium’s intervention was admitted and that party was ordered to pay the costs of the intervention, set at 125 euros.
Why does this matter?
The signature on a bid is not a formality but the act by which the bidder commits itself. This judgment confirms that this commitment must be established at the moment of the opening: whoever signs must be authorised at that moment, and the proof of it belongs with the bid. A power of attorney that surfaces only afterwards — especially one that is undated and has no fixed date through an authentic instrument — cannot cure that defect, for otherwise the authority would never have certainty as to whether the bidder was truly bound on the opening date. Equally instructive is what the judgment says about the nature of the extreme-urgency procedure. Office Depot did not so much ask the Council to correct a manifest error, but to let a civil-law reasoning about ratification prevail over settled procurement case law. That is a debate on the merits, and summary proceedings — where the examination remains limited to a strict minimum and only serious, evident pleas count — is not the place for it. Whoever seeks a reversal of principle in the case law must do so in an annulment action, not in a suspension action.
The lesson
As a bidder, make sure that the person who electronically signs your bid is demonstrably authorised on the opening date, and attach the proof of it — statutes, publication in the Official Gazette annex, or a dated power of attorney — to the bid straight away. Do not count on repair afterwards: a power of attorney provided only after the opening, with no fixed date, will not be accepted, and the appeal to ratification with retroactive effect from the law of mandate does not prevail over the procurement rule that the commitment must be established at submission. As an authority, this judgment confirms that you may declare a bid substantially irregular when the signing authority is not apparent from the attached documents. Finally, if you want to overturn an established line of case law, choose the right forum: that is done on the merits in an annulment action, not in an extreme-urgency summary procedure where only evident pleas count.
Ask yourself
Can the person who electronically signs your bid prove their authority on the opening date, and is that proof attached to the bid? Do you rely on a power of attorney? Does it have a fixed date, and does it predate the opening? Do you realise that an appeal to ratification with retroactive effect does not prevail over the rule that the commitment must be established at submission? Are you choosing the right forum: a debate on the merits about a settled line of case law belongs in an annulment action, not in an extreme-urgency action?
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 →