Complaining that the specifications are unlawful while simultaneously demanding the contract be awarded to you — that does not work
The Council of State rejects a third extreme-urgency action against Ghent University Hospital: after the contracting authority withdrew earlier awards to a competitor and ultimately cancelled the entire procedure to fix a flaw in the specifications about INAMI/RIZIV reimbursement, the bidders who had themselves pointed out that flaw cannot now claim a 'direct' award.
What happened?
Ghent University Hospital launches a competitive procedure with negotiation for a framework agreement for the supply of special medical gases in cylinders, divided into two lots. Lot 1: gas mixture 50% O2 + 50% N2O. Lot 2: gas mixture NO in N2 (nitric oxide in nitrogen). For lot 1 the specifications expressly require that the medicine be reimbursable through INAMI/RIZIV — otherwise the bid is not even considered. For lot 2 that condition is not included. On 14 April 2022 Air Products submits written questions. Their concern: their NO/N2 gas mixture is INAMI-reimbursable, the competitor Air Liquide Medical's is not. Without the reimbursement condition or a correction mechanism in the price formula, a bid of €80 without reimbursement may seem 'cheaper' than a bid of €100 with reimbursement — even though the latter is actually more advantageous for the hospital. The hospital answers tersely on 20 April 2022: reimbursement for lot 2 is rarely used because the conditions are too strict. Five candidates are selected, but only two submit bids for the relevant lots: Air Products (with Dräger) and Air Liquide Medical. On 30 November 2022 the award report proposes awarding both lots to Air Liquide. The board does so on 20 December 2022. On 18 January 2023 Air Products, Intersurgical Benelux and Dräger lodge an extreme-urgency suspension. Their core argument: the specifications are unlawful because the INAMI condition for lot 2 is missing. On 30 January 2023 — before the hearing — the hospital withdraws its own award. A revised review report no longer awards lot 1 (lack of regular bids) and re-awards lot 2 to Air Liquide with identical scoring and reasoning. By judgment 255,711 of 8 February 2023 the Council declares the first action moot. Air Products + Dräger lodge a second extreme-urgency action on 16 February 2023 against the new decision. Same core argument. On 27 February 2023 the hospital does an additional internal investigation — and reaches a striking insight. An internal email admits: 'Initially we thought the order of magnitude of the reimbursed amount was negligible compared with the total price of the gas mixture. Further investigation showed that an unduly strict interpretation of the reimbursement modalities had been applied, leading to under-registration of the medical service. As a result a substantially too low reimbursement amount was collected. Analysis revealed that the ratio of reimbursement to gas price is roughly 30%.' Not 'negligible' but about a third of the gas price. The hospital again withdraws its decision and chooses a more radical solution: cancel the entire procedure for lot 2 and launch a new one 'in which reimbursability of the relevant specialty will be incorporated in the contract documents in some way'. That decision is formalised on 1 March 2023. By judgment 255,998 of 9 March 2023 the Council declares the second action moot too. Air Products and Dräger do not give up. On 15 March 2023 they lodge a third extreme-urgency action — this time against the cancellation decision itself. Their argument: they were the only remaining regular bidders, their bid was cheapest and economically most advantageous, and the cancellation amounts to misuse of power — an attempt to circumvent their award and give Air Liquide another chance. The Council of State rejects the action. On motivation: article 85 of the 2016 Procurement Act makes clear that launching a procedure does not entail an obligation to award. The contracting authority has 'considerable assessment latitude' to cancel, provided the decision rests on sound reasons. A flaw in the specifications that may give a discriminatory advantage or make comparison of bids impossible is a valid reason. The hospital itself concedes its specifications were unlawful on this point, and the Council agrees: such a flaw affects the placement procedure 'in its foundations' — the contract can no longer be lawfully awarded on these specifications. Cancellation and re-launch with adjusted specifications is an appropriate response. The formal duty to motivate is also fulfilled, even though the contested decision does not expressly say which assumptions were wrong. Crucially, motivation must be read in context. Air Products itself raised the issue on 14 April 2022 and pleaded the unlawfulness of the specifications in two earlier proceedings. 'In those circumstances it does not seem serious for the applicants to claim that the motivation does not give them sufficient insight into the decisive grounds.' On misuse of power: good faith is presumed, and whoever alleges bad faith must prove it. Air Products argues that cancellation favours Air Liquide — but that, the Council says, is 'far from an obvious expectation'. In the new procedure INAMI reimbursability will be in the specifications, and that condition disadvantages Air Liquide whose product is not eligible. And then comes the pivotal point. Air Products demands a 'direct' award based on the current specifications. The Council: that starting point is incorrect. Air Products itself argued that the two categories of price bids (with and without reimbursement) were not comparable 'on the same formula'. If that criticism is correct — and the Council says it is — then the contract cannot be lawfully awarded to anyone on the existing specifications, applicants included. The specifications must first be amended. Air Products cannot demand a 'direct' award on specifications that, by their own argument, are fundamentally flawed. Moreover, amending the specifications does not mean the contract automatically goes to Air Products. Bids will have to be re-assessed on multiple criteria, and other companies may apply. 'Cancelling and re-launching with adjusted specifications' is, ironically, 'the best outcome the applicants can expect from their criticism of the ongoing procedure'. Action rejected. Costs reserved given the further procedure that remains.
Why does this matter?
Bidders contesting a fundamental flaw in specifications must make a strategic choice: either you ask for amendment of the specifications (resulting in a new procedure with uncertain outcome), or you ask for award based on the existing specifications (which becomes difficult once you yourself have said those specifications are unlawful). You cannot have both. The judgment is also a guide for contracting authorities that discover their flaw too late: article 85 of the 2016 Procurement Act gives broad cancellation power, provided motivation refers to a real flaw distorting competition. 'Progressive insight' during pending Council proceedings is, according to this judgment, an acceptable ground — even if that insight only emerges under the pressure of litigation. For bidders demanding award after cancellation: the burden of proof for misuse of power lies with you, good faith is presumed, and a chronology of withdrawals + new awards + cancellation never on its own suffices as proof.
The lesson
Before launching an extreme-urgency suspension against specifications with an alleged fundamental flaw: first decide what end result you want. If you want amendment of the specifications, you risk a complete reopening with new players entering, and no certainty of award. If you want award, formulate your pleas differently — for example that the specifications were misapplied, not that the specifications themselves are unlawful. For contracting authorities: if during a running procedure you realise your specifications operate in a discriminatory way, you can use article 85 of the 2016 Procurement Act to cancel. Document the 'progressive insight' (internal memos, additional research, quantification of the impact like the 30% reimbursement ratio here) and motivate the cancellation by reference to the concrete flaw and the new procedure you will launch. The motivation need not expressly name the previous assumptions if the bidders already know them from prior correspondence.
Ask yourself
Open the last extreme-urgency or annulment action you want to file against an award. If your main plea is that the specifications themselves contain a fundamental flaw (missing minimum condition, missing correction mechanism, structural incomparability of bids): ask yourself what remedy you really want. If you ask for award to yourself, you are inconsistent — you are demanding award on specifications you yourself say are unlawful. Rework your pleas before filing or include a subsidiary plea expressly accepting that a new procedure may be the correct remedy.
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 →