Ghent University Hospital withdraws the medical-gas award before the urgent hearing: the extreme-urgency action loses its object, but the fight is not over and the costs are reserved
Air Products, Intersurgical and Dräger sought, under extreme urgency, the suspension of Ghent University Hospital's award to Air Liquide Médical of a framework agreement for special medical gases, but when the hospital withdrew that award a few days before the hearing — not awarding lot 1 for lack of regular offers, re-awarding lot 2 to Air Liquide Médical — the action lost its object, and the Council of State reserved the costs because the annulment limb was still running.
What happened?
By decision of 20 December 2022, Ghent University Hospital awarded a public contract entitled 'Framework agreement for the supply of special medical gases in cylinders and accessories, incl. devices' (specifications no. D34210032/MPMO/JDM/SSI). Lot 1 (the gas mixture 50% O2 + 50% N2O) and lot 2 (the gas mixture NO in N2) were both awarded to Air Liquide Médical. Air Products, Intersurgical Benelux and Dräger Medical Belgium — rejected for one lot or the other — lodged on 18 January 2023 an extreme-urgency suspension action against that award and against the implicit decisions not to award to themselves. Under article 16, § 2, third paragraph, of the royal decree of 5 December 1991 on interim-relief procedure, the parties were summoned by the president of the twelfth chamber to a virtual hearing via Teams on 7 February 2023. Before that hearing the authority intervened: on 30 January 2023 the hospital's management committee decided to withdraw the contested decision of 20 December 2022. On the basis of a revised examination report, it further decided not to award lot 1 for lack of regular offers, and to award lot 2 once again to Air Liquide Médical. Through that withdrawal the contested decision disappeared from the legal order. The Council of State found that the action had thereby lost its object, or at least that the applicants had lost their interest in it, and dismissed the action. On costs, it held that the application sought not only suspension but also annulment, so that the procedure still to come made it appropriate to reserve the costs. Chamber president Paul Lemmens reported and auditor Frederick Ongena gave an opinion concurring with the judgment.
Why does this matter?
This short judgment shows how an authority can disarm an urgent procedure by withdrawing its own decision before the hearing. Whoever withdraws an award and redoes the examination deprives the extreme-urgency action of its object: there is nothing urgent left to suspend. For the authority that is a legitimate way to correct a procedural error. For the rejected bidders the balance is twofold. On one hand they obtain a practical result: the contested award is gone, and for lot 1 the hospital itself finds there were no regular offers, so it is not awarded. On the other hand the fight is not over — lot 2 is immediately re-awarded to the same beneficiary, Air Liquide Médical, so a fresh challenge may be needed. Equally important is the costs ruling, and here this judgment differs from cases where a withdrawal fully closes the dispute. Because the application also sought annulment and that procedure continues, the Council did not yet rule on the costs but reserved them. A withdrawal therefore does not automatically mean the bidder recovers its costs; that depends on how the remaining dispute ends.
The lesson
If you are an authority facing an extreme-urgency action against your award, a timely withdrawal followed by a revised examination is a legitimate way out: the action loses its object and the urgency falls away. Do it before the hearing and base the new decision on a sound revised report. If you are a rejected bidder, do not count your winnings too soon on a withdrawal. It removes the contested decision, but the authority may re-award the same lot to the same competitor — as here with lot 2 — so you may have to act again. And unlike cases where the dispute is fully closed, your costs are not simply imposed on the authority: if your application also seeks annulment, the Council may reserve the costs until that limb is settled. Weigh, then, whether to pursue the annulment action, especially when the re-award disadvantages you again.
Ask yourself
Do you realise that withdrawing the contested award renders your extreme-urgency action without object, and that the Council then dismisses it? Do you know that a withdrawal does not mean you win: the authority can re-award the same lot to the same beneficiary, as here for lot 2? Have you taken into account that, where your application also seeks annulment, your costs may be reserved rather than immediately imposed on the authority? And as an authority: does your withdrawal and re-award rest on a sound revised examination report, and does it happen in time before the urgent hearing?
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 →