Delegated to the chairman as well as the director general, and never published: the Council of State suspends SOFICO’s third award of the A15 works
After SOFICO had already withdrawn two award decisions for the rehabilitation of the A15 (E42) under pressure from applications by Colas Belgium, its board had the third award — 5,142,514.87 euros excluding VAT to Eurovia Belgium — signed by its chairman as well as its director general, on the basis of a delegation that the SOFICO decree allows only to the director general and that had never been published in the Belgian Official Gazette; the Council of State suspended that decision under extreme urgency.
What happened?
On 26 April 2024 the board of SOFICO, the Walloon company for the complementary financing of infrastructure, approved the conditions of works contract ‘EPO6-24’ for the rehabilitation of the A15 (E42) between the Courcelles interchange (bk 88.00) and the Gouy-lez-Piéton interchange (bk 90.100). The contract was governed by special specification no. SOF-MI-O8.06.02-24-3846, put out under an open procedure and to be awarded on the lowest price. The contract notice appeared on 26 February 2025 in the Bulletin of Awards and in the Official Journal of the European Union; two corrigenda followed on 10 and 31 March 2025, partly in response to an observation by Colas Belgium. Four tenders were submitted by the deadline, including those of Colas and of Eurovia Belgium. What followed were three award decisions in barely nine months. The first, of 25 July 2025, awarded the contract to Eurovia and rejected Colas’s tender as substantially irregular; SOFICO withdrew it on 29 August 2025 after Colas had sought suspension under extreme urgency, and the Council of State dismissed that application by judgment no. 264.229 of 19 September 2025. The second, of 28 November 2025, again awarded to Eurovia: Colas’s tender was now found regular, but Eurovia’s was considered economically more advantageous. That decision too was withdrawn, on 30 January 2026, and that application for suspension was likewise dismissed by judgment no. 265.775 of 18 February 2026; the annulment action against it remains pending. On 27 March 2026 the board decided to delegate ‘to the chairman and the director general’ the power to award the contract to the tenderer submitting the economically most advantageous regular tender, to approve and sign the award decision, and to take the measures required to implement it. The minutes expressly justified the delegation by ‘the need to award the contract as quickly as possible, so as to allow the works still to be carried out in 2026’. On 7 April 2026 the chairman of the board and the director general awarded the contract to Eurovia Belgium for 5,142,514.87 euros excluding VAT; Colas’s tender was this time found regular ‘subject to verification of prices’. Colas applied for suspension under extreme urgency on 24 April 2026; by order of 27 April 2026 the case was set down for the hearing of 12 May 2026. The first plea — lack of competence of the author of the act — proved serious in both its branches. The delegation act of 27 March 2026 stated no legal basis and concerned this single contract, so it amounted to a special mandate. Article 5, § 2, fourth paragraph, of the decree of 10 March 1994 allows the board to delegate ‘specific powers’ to the director general — and to no one else. That provision, inserted by the decree of 5 May 2022 as part of the reform of SOFICO’s governance, must be interpreted strictly: prima facie it does not permit those powers to be entrusted jointly ‘to the chairman and the director general’. Article 5, § 2, of the statutes, on which SOFICO relied, cannot derogate from that decree-based rule — and the statutes appear never to have been adapted after the decree of 5 May 2022 entered into force. A second, at least equally fatal finding followed. Article 14/1 of the decree of 12 February 2004 on the status of the public administrator provides that a deliberation by which the management body delegates powers must be published in the Belgian Official Gazette; under article 3, § 1, 15°, of that decree SOFICO falls within its scope. Such publication serves to bring the delegation to the knowledge of third parties and thereby to make it binding on them. SOFICO acknowledged at the hearing that the decree of 10 March 1994 does not derogate from that formality. It pleaded practical difficulties in having its delegation acts published, given its status as a sui generis public undertaking, but produced no evidence and did not show that it had done everything to obtain publication, if necessary urgently. The delegation therefore breached article 5, § 2, fourth paragraph, of the SOFICO decree and, for want of publication, was not binding on Colas. In the balancing of interests SOFICO identified no negative consequences of a suspension that would outweigh its advantages — and the Council of State saw none either. The Council ordered the suspension of the decision of 7 April 2026 and the immediate execution of its judgment. At this stage it maintained the confidentiality of Colas’s tender and of a letter of 8 August 2025 containing unit prices (items 6.1, 6.2 and 11 annexed to the application), of items A to D, G, J and L of the administrative file, and of the unredacted versions of items E, F, H, I and K filed on 4 May 2026 on the electronic platform. Costs, including the procedural indemnity, were reserved.
Why does this matter?
Procurement disputes usually turn on selection and award criteria, on the regularity of tenders and on the reasoning behind the comparison. This judgment is a reminder that one question comes before all of those: who actually took the decision, and were they allowed to? If that answer becomes uncertain, the award decision falls without the Council of State having to say a single word about the tenders. The judgment exposes two independent fault lines. The first is the scope of the delegation: the decree names the director general, which makes the chairman one person too many. Statutes cannot widen a restriction imposed by decree, and statutes left unamended after a decree reform are a trap that only becomes visible when someone places them next to the text. The second is publication: a delegation that does not appear where the legislature wants it to appear simply does not exist as far as a third party is concerned. A tenderer need not prove that it was unaware of it; it is for the contracting authority to make it binding. The irony is sharp. SOFICO delegated precisely in order to save time and get the works carried out in 2026. That shortcut produced a third round of litigation and a suspension with immediate effect — after two earlier decisions already withdrawn under pressure from the same applicant. The judgment is also a lesson in persistence: Colas formally lost the two previous suspension judgments, each time because the withdrawal had emptied the application of its object, and prevailed only at the third attempt — on a plea that had nothing to do with the assessment of its tender.
The lesson
As a tenderer receiving an award decision, look first at the signature and the recitals. If the decision refers to a delegation, ask for the delegation act and test it on two points: does the organic text — decree, statute, ordinance, organic regulation — allow delegation to precisely that person or body, and has the delegation been published where the rules require? An unpublished delegation is not binding on you, and that plea is entirely independent of the quality of your tender — which makes it usable even where your substantive criticism is weak. If the same procedure has already gone off the rails several times, do not give up: each new decision opens a new time limit and deserves a fresh check. As a contracting authority, the lesson is uncomfortably concrete. A delegation meant to save time can cost months. After every legislative or decree amendment, place your statutes and internal delegation decisions alongside the new text: a statutory provision broader than the decree is not a legal basis but a risk. Delegate to the person the text names, not to a convenient combination of offices. And publish where publication is compulsory. The argument that publication is practically awkward for an institution such as yours will not succeed without evidence that you genuinely tried, if need be urgently.
Ask yourself
Do you know who within your organisation is legally competent to take an award decision, and on the basis of precisely which text? Have you placed your statutes and internal delegation rules alongside the new text after the most recent legislative or decree amendment? Have your delegation decisions been published where the rules require, and can you demonstrate that publication? As a tenderer: do you routinely ask for the delegation act when an award decision is not signed by the competent body itself? And do you realise that a time-pressure argument — ‘the works must start this year’ — does not set aside the formalities of a delegation, but rather draws attention to them?
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 →