Damages after annulment: the principle is accepted, the amount isn't — debates reopened
The Council of State dismisses six admissibility objections against the damages claim of three 'reserve' bailiffs after the annulment of the award decisions for lots 1-4 of the Walloon bailiff framework — but cannot quantify the loss on the Walloon Region's untested figures and reopens the debates.
What happened?
In 2014 the Walloon Region awarded a framework agreement for the appointment of bailiffs to recover its claims, split into seven lots. For lots 1-4 the award went on 5 May 2015 to three temporary partnerships (INTERVENTUS-MASSILLON-VIDICK, BORDET-HUY 2 RIVES-RAXHON and RESALEX & PARTNERS), and the partnership TINTIN-DUBOIS-SINATRA was designated for those four lots as 'reservistes' — replacements who would only get work if the actual contractors backed out. By judgment 231.714 of 23 June 2015 the Council suspended those awards, and by judgment 235.319 of 1 July 2016 it annulled them definitively — among other reasons because of an illegality on 2 March 2015: during the procedure the Region had organised a meeting with IT staff of certain competing bailiff offices about the practicalities of the future IT platform, in breach of equal treatment and transparency. On 12 September 2016 TINTIN, DUBOIS and SINATRA filed a damages claim (indemnité réparatrice, article 11bis Council of State Act). Their case: but for the 2 March illegality — combined with a second irregularity the Council had flagged in another suspension judgment (231.846 of 2 July 2015), namely a substantial irregularity in INTERVENTUS-MASSILLON-VIDICK's bid for lot 2 — their bid would have moved up one place and they would have been awarded the contract instead of designated as reserves. Calculation: €2,398,400 for year one, €5,731,600 for year two (factoring in new vehicle-tax cases), €8.13 million total. Subsidiarily: loss of a chance, valued at 90% of the principal claim. The Walloon Region raises six admissibility objections: (1) ratione temporis: the suspension judgment of 23 June 2015 had already established the illegality, so the 60-day deadline was long past; (2) no interest in the finding of illegality of the 2 March meeting; (3) ratione personae: reserves are not 'interested third parties' for the contested awards; (4) lot 1 falls outside the actionable illegality; (5) ratione temporis against the application for the other lots; (6) obscuri libelli — the calculation is unclear. The Council brushes all six aside: judgment 235.319 — the annulment judgment — is the reference point for the deadline, not the earlier suspension judgment; loss of a chance tied to the 2 March meeting is invoked from the application itself (page 15); the reserves were parties to judgment 235.319, which establishes the illegality for all four lots; and the calculation (pages 7-15 of the application, with supporting documents) is sufficiently developed for adversarial debate. On the merits — quantifying the profit the reserves could have earned — the Council can't conclude. The Walloon Region had supplied figures on the profit other bailiffs actually made on the framework, but without underlying documents and with retroactive 'revaluations' to write off rejected costs. The reserves contested those figures fundamentally at the hearing of 20 March 2019, also because no document had been produced. The Council: without underlying documents subjected to adversarial debate, no evaluation is possible. Debates reopened, supplementary report from the audit office requested. Confidentiality of the bids and statistics is maintained for now. Costs reserved.
Why does this matter?
For anyone who has won at the Council of State without remedy possible — because the contract was already executed, or only annulment followed — this judgment is instructive. It shows how a damages claim (article 11bis) plays out in practice: admissibility objections are usually procedural smoke that clears with a well-drafted application. The real battlefield is the quantum: how much have you lost, and what evidence do you have? Many cases falter here: a public authority is hard to condemn on its own untested figures, but the claimant must also extrapolate plausibly — hence the value of a documented sample of past cases. For contracts involving casework (bailiffs, lawyers, debt collectors, IT maintenance, project management) this judgment is a methodology: keep your internal numbers, average margins per case and expected volumes in a form that can be plugged into a damages calculation later.
The lesson
Won an annulment or suspension on a contested award? Systematically consider a damages claim under article 11bis. The 60-day deadline runs from notification of the annulment judgment, not the suspension judgment. Build your file with (1) a detailed sample of comparable cases with margins and costs, (2) a defensible extrapolation to the volume of the contested contract, (3) a fall-back on loss of a chance with a justified percentage. Expect the contracting authority to push back with its own figures — demand they be treated adversarially: documented and contestable.
Ask yourself
Got your annulment judgment? Note the notification date (greffe registry letter). From the day after, you have 60 calendar days to file a damages claim. Have you got a sample of comparable cases, margins, cost structure? A subsidiary 'loss of a chance' argument with a reasoned percentage?
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 →