Annulment appeal against award of Falcon 900 aircraft sale rendered moot after withdrawal of contested decision and award to applicant – costs borne by respondent
The Council of State dismissed the annulment appeal by CV PartsCare against the award of the sale of a Falcon 900 aircraft to Fenix Recycling, because the Minister of Defence had withdrawn the contested decision following an earlier suspension ruling and awarded the contract to PartsCare, rendering the appeal moot.
What happened?
The Minister of Defence awarded a supply contract on 25 May 2021 — the sale of one Falcon 900 aircraft with related spare parts, tools and support equipment — to Fenix Recycling. CV PartsCare, the other tenderer, filed an annulment appeal on 10 June 2021. By ruling no. 251.145 of 29 June 2021, the Council of State ordered the suspension of the award decision. Following notification of the suspension ruling, the Minister withdrew the contested award on 17 July 2021 and awarded the contract to PartsCare. The annulment appeal thereby became moot. Under Article 17 §6 of the coordinated laws on the Council of State, a contested decision can be annulled through accelerated proceedings if the respondent does not request continuation of proceedings within thirty days of notification of the suspension ruling. The respondent did not file such a request. The appeal was dismissed for lack of object. Costs (€990) were charged to the respondent.
Why does this matter?
This ruling illustrates the operation of accelerated proceedings following a suspension ruling: when the contracting authority withdraws the contested decision after a suspension and awards the contract to the applicant, the annulment appeal becomes moot. Notably, costs are still charged to the respondent despite the dismissal — an acknowledgment that the applicant had acted justifiably.
The lesson
A suspension ruling can lead to withdrawal of the contested decision and award to the applicant. In that case, the annulment appeal becomes moot, but costs are charged to the respondent. As a contracting authority: file a timely request for continuation after a suspension ruling if you want to avoid accelerated annulment.
Ask yourself
As an applicant: have I taken into account that a suspension can safeguard my interests but the annulment appeal may formally continue for years? As a contracting authority: have I timely filed a continuation request after a suspension ruling if I want the case to be substantively assessed?
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 →