Winter services Bastogne: no damages despite annulment of award — applicant fails to prove extent of loss because he performed the services through his own company and as subcontractor
The Council of State rejects a claim for €42,070 in damages following the annulment of a winter services award in the Bastogne district, because the automatic 10% indemnity (article 16(3) of the Act of 17 June 2013) only applies when the contract was actually concluded — here the contract was never concluded as the suspension intervened before conclusion — and the applicant fails to demonstrate the extent of his damage, since his company (in which he holds 180 of 186 shares) obtained the replacement contract and he personally performed as subcontractor for the first winter period.
What happened?
This case is the sequel to the Bastogne winter services saga. On 3 September 2020, SOFICO awarded a winter services contract for four periods (2020-2024) to SRL Transports Grandhenry. The Council of State suspended the award because two tenderers were linked companies: the same person signed both offers, prices were identical for 14 of 16 items, and price justification answers were word-for-word identical. SOFICO subsequently withdrew the award and launched a new procedure for 2021-2024 (that decision was annulled the same day by ruling no. 263.929 for exceeding delegation authority). The new contract was awarded to SRL Nisen Travaux — of which the applicant holds 180 of 186 shares. For the first winter period 2020-2021, an emergency arrangement was made with SA Pierlot, with the applicant acting as subcontractor. The applicant claimed €42,070 (10% of his offer price × 4 periods) under article 16(3) of the Act of 17 June 2013 (automatic 10% indemnity in price-only open procedures). The Council ruled this provision inapplicable: it requires the contract to have been actually concluded with a competitor. Here, the suspension intervened before conclusion, the award was withdrawn, and no contract was ever concluded. Under the ordinary regime, the applicant must prove causation and the extent of damage. The Council found that the applicant failed to demonstrate the extent of his loss. For 2021-2024, his own company won the replacement contract — he should have quantified the difference between expected and actual income. For 2020-2021, performance sheets showed he worked as subcontractor. The applicant failed to integrate these revenues into his damage assessment. The claim was rejected.
Why does this matter?
This ruling clarifies that the automatic 10% indemnity under article 16(3) only applies when the contract was actually concluded with a competitor. When suspension or annulment intervenes before conclusion, the ordinary regime applies and the applicant must prove causation and the extent of damage. The burden of proof requires concrete quantification of the difference between expected and actual income, including revenues received through a related company or as subcontractor.
The lesson
As a tenderer claiming damages after annulment: do not assume the automatic 10% indemnity applies. It requires actual contract conclusion with a competitor. When suspension intervenes before conclusion, you must concretely prove causation and quantify your damage, accounting for all income actually received — including through your own company or as subcontractor. The distinction between yourself and your company as separate legal persons is insufficient without concrete quantification.
Ask yourself
As a damages claimant: was the contract actually concluded with a competitor (required for the automatic 10% indemnity)? If not, can you prove causation and concretely quantify your damage? Have you integrated all income received in connection with the services — including through a company or as subcontractor — into your damage assessment?
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 →