Filing no reply memorial means losing your interest automatically — even if the award decision was problematic
The Council of State rejects BV Serendipity's annulment action against the award of the supply contract for the Turnhout vaccination centre to New Balls Please, not on the merits but procedurally: Serendipity failed to file a reply memorial within the statutory sixty-day period after notification of the response memorial, and thereby automatically lost the required interest.
What happened?
On 20 January 2021, in the middle of the COVID vaccination campaign, the College of Mayor and Aldermen of Turnhout awarded the supply contract for setting up the Turnhout vaccination centre to BV New Balls Please. BV Serendipity (Grobbendonk), another bidder, first ran an extreme-urgency procedure: by judgment 249.935 of 1 March 2021 the Council of State rejected that suspension request. On 22 March 2021 Serendipity then filed the annulment action. Turnhout (assisted by counsel Gitte Laenen and Wouter Rubens) and the intervening party New Balls Please filed their memorials. On 28 June 2021 Serendipity received notice of Turnhout's response memorial, together with the express warning — required by Article 21, second paragraph, of the coordinated laws on the Council of State and Article 14bis §1 of the Regent Decree of 23 August 1948 — that failure to file a reply memorial within the sixty-day period (Article 7 of the same Decree) automatically entails a finding of absence of interest. Serendipity filed no reply memorial. None of the parties asked to be heard. President of the XIIth chamber Paul Lemmens does not even open the substantive procurement debate: 'It must be found that the interest required to obtain the requested annulment is absent.' Action rejected. Serendipity is ordered to pay 200 € roll fee, 20 € contribution, and 700 € procedural indemnity to the City of Turnhout. The judgment runs to four pages and the substance of the award is never discussed.
Why does this matter?
Many bid managers mentally close the file after the extreme-urgency phase. That round is won or lost, and the real fight feels over. But the annulment procedure that follows has strict deadlines independent of what happened in the urgency phase. Serendipity here probably let the file drop after losing the urgency motion — or the lawyer-client communication slipped, or the deadline was underestimated — and pays for it with a lost case where no judge ever looked at the award reasoning. For those familiar with the road map: after receiving the contracting authority's response memorial, you have sixty days to file your reply. The registry expressly warns you — that letter must be read, not filed away. No reply = the Council finds that you no longer have an interest, and that is an automatic rejection without substantive review. This is not formalism: it is the price of a procedure in which the Council only handles cases that the applicant actively defends.
The lesson
If you file an annulment action after losing in extreme urgency, treat it as a new file with its own deadlines. Put the sixty-day reply-memorial deadline in your calendar the moment the procedure starts — not when the response memorial arrives. And: after the urgency outcome, expressly discuss with your lawyer whether the annulment is being pursued. Letting it lapse silently costs money without the case ever being examined on the merits.
Ask yourself
You have an annulment action pending against an award, you lost the urgency phase, and the contracting authority has served a response memorial: is the sixty-day reply-memorial deadline in your calendar, and have you agreed with your lawyer who is responsible for filing it?
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 →