Your offer was irregular, you lost the contract — and you still get €10,261 in damages
The Council of State orders the municipality of Heers to pay €10,261.43 in damages to Idemasport despite the fact that its own offer was irregular, because the winning offer also turned out to be irregular and in a new award procedure Idemasport would have had a real chance — assessed in fairness at 50%.
What happened?
In 2021 the municipality of Heers ran a simplified negotiated procedure with prior publication for 'sports floors and equipment, Heers sports hall' (lot 2 of a larger renovation project). Two bidders submitted offers: Idemasport and Janssen-Fritsen. The award report flagged technical deviations on several items of both offers. The municipality declared Idemasport's offer 'substantially irregular' and on 10 May 2021 awarded the contract to Janssen-Fritsen 'as the only regular offer'. Idemasport filed an appeal. By judgment no. 254,077 of 23 June 2022 the Council of State annulled the award decision: Janssen-Fritsen's offer was also not lawfully regular (a deviation on an essential clause — the payment terms — affecting the price). Conclusion: the contract could not lawfully be awarded to any bidder; the procedure had to be reopened. In that same judgment the Council reopened the debate on damages, because in-kind reparation — a re-tender — seemed in principle still possible (the works had not yet started). On 1 September 2022 the municipality reported, however, that works had nevertheless been started shortly after the hearing (26 April 2022) by Janssen-Fritsen and had since been completed. In-kind reparation was therefore no longer possible. Idemasport claimed €11,413.76 in damages plus compensatory interest. Calculation: 10% of the offer price (€22,827.52 incl. VAT) × 50% chance = €11,413.76. The municipality argued there was no causal link — Idemasport's offer was technically non-compliant, so even in a lawful procedure it would never have won. The Council does not accept that defence. Key reasoning: through the annulment judgment it is established that the winner's offer was also irregular, so the procedure had to be restarted — and in that re-award (with or without a new tender document) Idemasport could have submitted a new offer, possibly with a subcontractor, that would meet the technical requirements. The 'loss of a chance' is therefore real. The Council applies the 10% rule of Article 16 of the procurement remedies law 'by analogy' (strictly speaking the rule applies only to open tendering, not to offers requested via negotiation, but the municipality raises no legal objection). The offer price ex VAT — rightly — applies: €20,522.87. The chance is assessed in fairness at 50% (two bidders, both irregular, so re-tender was inevitable). Final result: 10% × €20,522.87 × 50% = €10,261.43, plus compensatory interest from 10 May 2021, plus default interest from the judgment date, plus a procedural indemnity of €770 and court costs.
Why does this matter?
This judgment lowers the threshold for damages after an annulled award more than many bid managers assume. The common assumption — 'if my own offer wasn't fully compliant, I shouldn't bother with a damages claim' — is wrong. As soon as the annulment judgment establishes that the winning offer was also irregular, a 'loss of a chance' arises by definition — because the procedure had to be reopened. The fact that the loser also had irregularities makes no difference, because in a re-tender (possibly with an adjusted specification or subcontractor) that loser would have had a real second chance. The signal to contracting authorities is no less significant: as soon as works are continued despite an annulled award and in-kind reparation is no longer possible, a damages claim is practically open. For bid managers: an annulment judgment against the award to a competitor is not only relevant for the future procedure — it opens a second front (the damages procedure under Article 11bis) with material financial potential. Ten percent of your offer price (ex VAT), modulated by your chance — with two bidders and both irregular, easily 50%.
The lesson
If you lost a contract because your offer was declared 'irregular', and you have indications that the winning offer was also irregular: pursue both attacks together. First the annulment, then the damages claim under Article 11bis. The finding that the winner was also irregular automatically opens the 'loss of a chance' argument, even if your own offer was technically substandard — because in a re-tender you would have been able to submit a new offer. Calculate for yourself: with two bidders the fair 'chance' sits around 50%; damages are assessed by analogy to the 10% rule on 10% of your offer price (ex VAT); and compensatory interest runs from the award date through to the judgment.
Ask yourself
Do you have both the annulment plea against the winner (why his offer was irregular) and an underpinning of your 'loss of a chance' (two bidders? more? what was your realistic chance in a re-tender?) ready in your file? Have you documented your offer price both inclusive and exclusive of VAT? Have you computed what damages of 10% × chance × offer price (ex VAT) would yield, plus compensatory interest over a typical 18-24 month procedure?
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 →