Signed above the 100,000-euro cap in the articles of association: the Council of State upholds the award of the Ghent Winter Festivities 2026-2030
An unsuccessful bidder challenged the award of the services concession for the Ghent Winter Festivities 2026-2030 because the winning tender had been signed by someone who, under the company’s articles of association, could bind it alone only up to 100,000 euros, whereas the concession was worth far more — but the Council of State held that such a statutory ceiling cannot, under article 5:73, § 2, second paragraph, of the Companies and Associations Code, be invoked against the contracting authority, so the tender already bound the bidder on submission and the power of attorney produced later was not a regularisation but a superfluous confirmation.
What happened?
The City of Ghent launched an open call for a services concession to organise the Ghent Winter Festivities in the city centre. A first attempt failed: on 26 March 2026 the college of mayor and aldermen approved an award to company E., but withdrew that decision on 13 April 2026 and discontinued the procedure. On 27 May 2026 the municipal council approved revised concession documents covering the year-end periods 2026/2027 through 2029/2030, with the option to extend to 2030/2031 and 2031/2032 — a maximum of six annual editions. The city chose a sui generis negotiated procedure with prior publication, advertised both nationally and at European level, in a single phase: bidders submitted a complete tender straight away. The specifications required at least an ice rink and a Christmas market, spread over the Sint-Baafsplein, the Botermarkt, the Emile Braunplein, the Poeljemarkt, the Goudenleeuwplein, Klein Turkije and the Korenmarkt, and imposed on the concession holder an annual fee of 150,000 euros plus 21 % VAT. Tenders were assessed on three award criteria: the overall quality of the concept (50 points), sustainability (40 points) and the plan for coordination and staffing (10 points). The deadline was 10 July 2026 at 10.00, compulsorily electronic via publicprocurement.be, with a qualified electronic signature on the submission report. Three bidders tendered. The evaluation report of 5 August 2026 examined regularity against four questions and noted that the successful tender had been signed by N.C., whereas the articles of association published in the Belgian Official Gazette provided that ‘each director individually, even where there are several, represents the company towards third parties (…) with the exception of legal acts worth more than one hundred thousand euros’. The value of the tender exceeded that amount, so the city requested additional documentation; on the basis of the document produced — a power of attorney dated 30 July 2026 — it concluded that the signature was valid. After application of the award criteria, the successful bidder scored 70 points, the applicant 62 and the third bidder 50. On 10 August 2026 the college awarded the concession to company E. and notified the applicant the same day, together with the award report. After correspondence between 21 and 24 August 2026 — in which the applicant argued that the power of attorney of 30 July 2026 in fact ‘confirms that [N.C.] did not have the requisite signing authority at the time of signature’ — it sought suspension under extreme urgency on 25 August 2026. The hearing took place on 16 September 2026. The Council of State rejected the single plea on two levels. On the facts: the tender file did state the signatory’s capacity unambiguously, and did so before the submission deadline — the ‘undertaking to make resources available’ of 30 June 2026 was signed by ‘N.C., permanent representative of company Y.’ and the preliminary evidence document by ‘N.C. — permanent representative of company Y. in its capacity as director of [the successful bidder]’. The premise that N.C. had signed in his own name therefore lacked any factual basis. On the law: under article 5:73, § 2, second paragraph, of the Companies and Associations Code, statutory restrictions on the power of representation cannot be invoked against third parties, even when published. The 100,000-euro ceiling is thus a purely internal company-law restriction; exceeding it does not in itself affect the bidder’s binding commitment towards the contracting authority. That the city nevertheless requested further documents was, the Council said, ‘rather a sign of diligence (…) than an indication of the contrary’, but it changed nothing about the fact that the bidder was already bound by its tender. The power of attorney accepted therefore did not amount to a regularisation and added nothing beyond confirming an already existing authority — a civil-law confirmation within the meaning of article 1.8, § 4, of the Civil Code may at most bear on N.C.’s liability towards his own company. The tender was not substantially irregular, the single plea was not serious, company E.’s intervention was admitted and the application for suspension was dismissed.
Why does this matter?
The signature on a tender is one of the most rewarding lines of attack in procurement litigation: someone who does not validly sign does not commit, and a tender that does not bind the bidder is substantially irregular. This judgment draws a sharp boundary around that. The applicant’s attack looked strong at first sight — the winner’s articles of association expressly limited a single director’s signing authority to 100,000 euros, the concession was worth far more, and the power of attorney meant to cure this was dated three weeks after the submission date. Yet it founders on company law: article 5:73, § 2, second paragraph, of the Companies and Associations Code makes statutory restrictions on the power of representation unenforceable against third parties, even when duly published in the Belgian Official Gazette. What counts externally is the organic power of representation; the monetary ceiling governs only the relationship between the director and his company. That removes the whole debate about the timing of the power of attorney: you do not need to restore an authority that was already there. The judgment is instructive for contracting authorities too. The City of Ghent did something that could easily have backfired — it saw a clause in the articles, hesitated, requested documents and called the result a ‘regularisation’. The Council characterises that request as diligence rather than an implicit admission of a defect, and finds that a wrong label (‘regularisation’ where there was nothing to regularise) does not make the award unlawful. Finally, the judgment confirms that the regularity test for concessions under the law of 17 June 2016 and the royal decree of 25 June 2017 runs parallel to that for classic public contracts: the same questions about signature, capacity and mandate, the same definition of substantial irregularity. That matters for a growing group of contracts — from event concessions like this one to bike-sharing schemes and catering operations — where the concession holder pays rather than gets paid.
The lesson
If, as an unsuccessful bidder, you want to attack your competitor’s signature, first make the distinction this judgment turns on: is there a genuine absence of power of representation, or merely a statutory restriction on it? The first goes to the validity of the commitment, the second does not — article 5:73, § 2, second paragraph, of the Companies and Associations Code makes statutory restrictions unenforceable against third parties, even if published. A monetary ceiling in the articles is therefore rarely a usable plea. Read the entire tender file before building a plea: statements of capacity in annexes such as the preliminary evidence document or an undertaking to make resources available count, and can knock out your premise. If you are the one tendering, the lesson runs the other way: state your capacity expressly next to your signature (article 2:53 of the Code), and when you sign as the permanent representative of a corporate director, write out that chain in full — that is precisely what saved the winning tender here. Attach the articles of association and the proof of your authority on submission, not afterwards. As a contracting authority, you may certainly request further documents when a clause in the articles raises questions: that is diligence. But call things by their name. Whoever labels a superfluous confirmation a ‘regularisation’ is writing into his own report that there was an irregularity — and inviting an action he did not need.
Ask yourself
Do you know whether the restriction you read in your competitor’s articles of association is a genuine limit on the power of representation, or an internal restriction that, under article 5:73, § 2, second paragraph, of the Companies and Associations Code, cannot be invoked against the contracting authority? Before building a plea about the signature, have you read the whole tender file for statements of capacity in annexes, and not just the submission report? Do you state expressly, on your own tender, in what capacity you sign, and do you write out the full chain when you act as the permanent representative of a company that is itself a director? Are the articles of association and the proof of your authority in the file at the moment of submission, rather than only after a question from the authority? And as a contracting authority: do you name what you are doing when you request further documents — confirming an existing authority, or genuinely regularising a defect?
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 →