Annulment appeal against withdrawal of medical gases award rejected for failure to file counter-reply
The Council of State rejects the annulment appeal of Air Products and Dräger Medical Belgium against UZ Gent's withdrawal of the award for Lot 2 (NO/N2 gas mixture) of a framework agreement for medical gases, because the applicants failed to file their counter-reply within the statutory sixty-day deadline.
What happened?
University Hospital Ghent launched a framework agreement for the supply of special medical gases in cylinders and accessories, divided into several lots. Lot 2 concerned the NO/N2 gas mixture (nitric oxide mixed with nitrogen). On 20 December 2022, UZ Gent awarded Lot 2 to NV Air Liquide Medical. On 31 January 2023, UZ Gent withdrew and revised this award decision. NV Air Products and NV Dräger Medical Belgium, who had not been awarded the contract, challenged this withdrawal before the Council of State. They filed a suspension application under extreme urgency, which was rejected by ruling No 255,998 of 9 March 2023 because the challenged decision had meanwhile been withdrawn and the application had become moot. The applicants then filed a request to continue the proceedings. UZ Gent filed a response brief, notified on 26 April 2023. The chief registrar sent the applicants a warning under Article 14bis(1) of the Regent's Decree and Article 21(2) of the coordinated laws on the Council of State: if the counter-reply was not filed within sixty days, the required procedural interest would be deemed absent. The applicants allowed the deadline to expire without filing a counter-reply. The Council found that the required interest was lacking and rejected the appeal. The applicants were ordered to pay the costs (each for half): court fee of EUR 800 and contribution of EUR 48.
Why does this matter?
This ruling illustrates a common but avoidable procedural pitfall: failure to file a counter-reply automatically results in rejection of the appeal for lack of required procedural interest, without the Council ever reaching the merits. Procedural deadlines before the Council of State are strictly enforced, regardless of the strength of the substantive arguments.
The lesson
Monitor procedural deadlines before the Council of State closely. After receiving the respondent's response brief, the counter-reply must be filed within sixty days. The registrar's warning letter is a last chance, not a first reminder. Whoever lets the deadline pass loses the appeal without the Council examining the case on the merits.
Ask yourself
As a tenderer filing an appeal before the Council of State: have I noted and monitored all procedural deadlines? Has the counter-reply been filed in time after receiving the response brief? Have I received and processed the registrar's warning?
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 →