Annulment of pharmaceutical supply award for pegfilgrastim lot — discriminatory technical specification excluding lipegfilgrastim (Lonquex) — admissibility without tender (Grossmann)
The Council of State annulled IRIS-ACHATS's decision awarding the pegfilgrastim pharmaceutical supply lot to Accord Healthcare, the technical specification having been annulled by companion judgment No. 261.996 for discriminatory character — TEVA PHARMA BELGIUM, whose product Lonquex is based on lipegfilgrastim, was admissible despite not having submitted a tender, per the Grossmann doctrine (C-230/02).
What happened?
IRIS-ACHATS tendered pharmaceutical supplies including a lot for 'specialities based on pegfilgrastim'. TEVA's product Lonquex is based on lipegfilgrastim, which TEVA considers therapeutically equivalent. IRIS-ACHATS informed TEVA that a lipegfilgrastim offer would be deemed substantially irregular and excluded. TEVA did not submit an offer but challenged the decisions. The lot was awarded to Accord Healthcare for €660,000. In companion judgment No. 261.996 (same day), the Council annulled the approval of the tender specifications for discriminatory character. Since the award was based on the annulled specifications, it was itself irregular and was annulled. TEVA's admissibility was confirmed per Grossmann: no need to submit an offer when chances are nil due to discriminatory specifications.
Why does this matter?
This ruling, together with companion case No. 261.996, demonstrates judicial control of technical specifications in pharmaceutical procurement. The cascade effect is clear: annulment of the specifications leads to annulment of the award. The ruling confirms the Grossmann doctrine in Belgian public procurement: an operator excluded by discriminatory specifications need not submit a futile tender to have standing.
The lesson
As a contracting authority: do not limit pharmaceutical specifications to a single active substance if therapeutically equivalent alternatives exist. As a tenderer: if specifications exclude your product and the authority confirms your offer would be rejected, you can challenge both the specifications and the award without submitting a tender (Grossmann).
Ask yourself
As a contracting authority: do your technical specifications name a specific active substance? Have you checked for therapeutically equivalent alternatives? As a tenderer: do the specifications exclude your product? Has the authority confirmed your offer would be rejected?
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 →