Silence loses the case: Polish tenderer misses the reply-brief deadline and sees its challenge to a police contract collapse
The annulment action of the Polish company J.P.C. against the award of the multi-year supply contract for fleece gilets for the integrated police failed without any substantive review: because J.P.C. filed no reply brief within sixty days, the Council of State recorded the statutorily presumed loss of interest and rejected the action.
What happened?
With specifications no. DGS/DSA 2011 R3 223, the Federal Police launched an open multi-year contract for the making of fleece gilets for the integrated police. The Polish company J.P.C. Sp. z o.o. challenged the award decision with an annulment action filed on 6 February 2012. The Belgian State filed a statement of defence, served on J.P.C. on 14 May 2012 — with express reference to article 21, second paragraph, of the coordinated laws: whoever fails to respect the deadline for the reply brief is deemed to no longer have the required interest. J.P.C. sent no reply brief to the registry within the sixty-day period. On 24 July 2012 the notification under article 14bis, § 1, of the Regent’s Decree followed; neither party asked to be heard. The Council could only record that the required interest was lacking, rejected the action and ordered J.P.C. to pay the costs of 175 euros. Not a word was ruled on the award itself — or on whether J.P.C. had a point on the merits.
Why does this matter?
This judgment is not about procurement law but about procedural discipline — and that is precisely why it matters to every tenderer. Proceedings before the Council of State involve strict forfeiture deadlines, and the one for the reply brief is the most treacherous: whoever lets sixty days pass after the authority’s statement of defence loses their interest by operation of law, however strong their pleas. The sanction is automatic; the Council has no discretion. The risk is greatest for foreign tenderers, less familiar with Belgian procedural rules — this Polish clothing manufacturer paid for it with the complete loss of its case. The lesson also works in reverse: for the authority, answering and waiting was enough.
The lesson
For tenderers who litigate: filing the action is only the beginning. Diarise every brief deadline — sixty days from service of the statement of defence for the reply brief — and if need be file a brief reply even when you have little to add: silence is read as loss of interest and costs you the case. If you litigate from abroad, work with Belgian counsel who organise strict deadline monitoring. For authorities: in a dragging case, check whether the applicant files its briefs on time — sometimes you win without a debate.
Ask yourself
Do you have a system that monitors all brief deadlines before the Council of State, even when the file goes quiet? Do you know that failing to file a reply brief within sixty days automatically leads to loss of interest, without any review of the merits? And do you file at least a short brief even when you have little new to say, in order to preserve your interest?
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 →