Annulled award gives second-ranked bidder no 10% lump sum, but 50% chance × 10% margin
Three years after the Council of State annulled the award to Dillen Bouwteam because of un-investigated abnormal unit prices, VMG-De Cock receives not the 10% statutory lump sum (it was not the lowest regular bid) but 55,716.56 euros: 50% chance of being awarded × 10% profit margin × 1.1 million.
What happened?
In 2017 the Antwerp city education holding launched an open tender for the renovation of an adult-education school building. Four bids were declared regular, with Dillen Bouwteam lowest (1,124,594.79 euros incl. VAT), followed by VMG-De Cock (1,165,572.67). On 26 July 2017 the contract went to Dillen. VMG-De Cock appealed, and judgment 247.663 of 28 May 2020 annulled the award. Crucial finding: four unit prices in Dillen's bid deviated more than 25% from the average unit prices, and three of those line items were not negligible — yet the city education holding had not conducted further price scrutiny. A shadow trail in that procedure: VMG-De Cock had filed a criminal complaint with civil party action on 31 May 2018, claiming four confidential documents (9 to 12) were forged — in a letter of 7 November 2018, the city education holding admitted those documents had been drawn up after the award decision, defending them as a 'reflection' of the 'reasoning exercise' done during the procedure. The works had meanwhile been carried out, so only damages remained on the table. VMG claimed 99,073.68 euros, later increased to 111,433.12 (or at least 110,318.79). The statutory 10% lump sum (article 16 Legal Protection Act, article 24 of the 2006 Act) is reserved for those who can prove they submitted the lowest regular bid — VMG was second, so that lump sum did not apply. The Council then applied the standard loss-of-chance calculation. Possible damage = 10% margin × bidder's own bid amount = 10% × 1,114,331.20 = 111,433.12 euros. The estimated chance of award is then applied. Not 25% (as the city education holding subsidiarily proposed, based on 4 regular bidders), because the price gap between Dillen and VMG was small while the gap with bidders 3 and 4 was large. The Council set the base chance at 50%. The city tried to lower it by pointing to items 1, 14 and 28 of VMG's bid as supposedly abnormally low. But the burden of proof for 'incontestable abnormality' lies with the contracting authority itself — and it had failed to prove this, partly because the 'reasoning exercise' had earlier consisted of falsely-dated documents. The 50% stood. Result: 1,114,331.20 × 10% × 50% = 55,716.56 euros in damages, plus statutory interest from 26 July 2017 (the award date) until full payment.
Why does this matter?
This is a textbook case for anyone who ever wondered what an annulled award is concretely worth in cash. The statutory 10% lump sum sounds generous, but applies only to those who can prove they were the lowest regular bid — not to the second in line. For everyone else, the math the Council applies here takes over: 10% of your own bid amount × estimated chance of award. The chance is not a mathematical fraction 1/N, but is calculated based on ranking, price gaps and any subsequent price analysis. And when a contracting authority is caught reconstructing its 'reasoning exercise' post-factum, that weakens its position in the damages procedure: it bears the burden of proving that the complainant's bid would also have been irregular under proper price scrutiny.
The lesson
When you have an award annulled and the works have meanwhile been executed, calculate damages in two steps. First: were you the lowest regular bid? If so, the statutory 10% lump sum applies, no further proof needed. If not, you fall back on general damages: 10% of your own bid amount as potential profit, multiplied by your award chance. Document, already in your initial appeal, the elements that determine that chance: the price gap with the chosen bidder, your ranking, and any weak points in the other bids. And if the other side has fabricated evidence post-factum at any point, use it: it shifts the burden of proof in the damages procedure.
Ask yourself
When facing an award where you are second-ranked and the winning bid is in your view irregular due to un-investigated unit prices: examine which prices deviate more than 25% from the average per item — that is the threshold the Council uses to identify 'non-negligible' deviations. Estimate your award chance realistically: small price gap with the winner and large gaps with third and fourth bidders bring you toward 50%.
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 →