Your award was annulled, but that doesn't entitle you to full lost revenue — the Council of State awards 5% of the offer price, not 73%
Following the annulment of the SEN5 award in judgment 260,900, Pluris claimed €69,506 in damages based on lost revenue; the Council of State recognises only a 50% loss of chance and awards €4,742.50 — 5% of the offer price of €94,850.
What happened?
This case is the tail of judgment 260,900 of 2 October 2024, in which the Council of State annulled the Town of Jodoigne's award to SRL SEN5 for a local orientation plan at the Bosquet site. That first ruling found two faults: Jodoigne had not effectively verified SEN5's references — which were identical to Pluris's, as SEN5 consisted of five former Pluris collaborators who had performed that work there — and the reference list failed to state the amount per project, breaching the specifications. Pluris then sought €69,506 in compensatory damages under article 11bis: its offer had ranked second, so without the illegality SEN5 would have been excluded and Pluris would have won the contract. It calculated: total offer price (€94,850) minus 26.7% for sub-contractors 'outside the structure'. Alternatively it asked for a 10% lump sum (€11,476.85). Jodoigne countered that article 66, §3 of the 2016 Act allowed it to question SEN5, which probably would still have won. The Council took a middle position. Causation: Pluris does not prove it would certainly have won. The authority could indeed have questioned SEN5 (as it had twice questioned Pluris), and whether that would have revealed inadequate capacity is not established. The two parties advanced radically opposing theses on how essential the ex-collaborators had been to the reference projects — the Council could not choose between them. Result: not full loss but loss of chance, estimated at 50% because there is no reason to believe one side over the other. Amount: Pluris's 73.3% margin calculation is 'economically inconceivable' — it treats only external subcontracting as variable costs, forgets travel, documentation and meeting costs, and wrongly excludes fixed costs entirely. The specifications required the total price to cover all costs. Absent a verifiable estimate, the Council applies the 10% analogy from article 16, §3 of the 2013 Act — strictly applicable only to open/restricted procedures with price-only criteria, but used here as an ex aequo et bono yardstick to avoid lengthy expert proceedings. Final: 50% × 10% × €94,850 = €4,742.50, plus compensatory interest from 21 June 2019 (original award date) and default interest from the ruling until payment.
Why does this matter?
This is the standard reference for anyone seeking damages after an annulment. Three things become crystal clear. First: 'my offer was second' is not enough to establish causation — you must show that without the fault the other bidder would actually have been excluded. If the authority can plausibly argue that regularisation or questioning would have cured the issue, you drop from 'certain loss' to 'loss of chance'. Second: the 10% lump sum from article 16 is a rough analogy, not a right to 10%. The Council assigns chance percentages (50% here) multiplied by that 10%. Third: arithmetic like Pluris's — offer price minus only subcontracting — is dismissed. Fixed costs must be apportioned and the offer price must cover all costs. For bid managers who assume damages follow easily after years of annulment proceedings: this ruling shows that even a clean annulment often yields only a few thousand euros.
The lesson
As applicant seeking damages after annulment: build your case on causation, not arithmetic. Collect concrete evidence that proper verification would have excluded the competitor. And when calculating damage: start from lost profit (not revenue), with fixed costs pro-rated. Without those building blocks, the Council will fall back on 10% × chance percentage — usually between 33% and 50%.
Ask yourself
About to calculate damages? Check: do you have concrete evidence the fault made (or could have made) the difference, is your profit margin realistic (not revenue but marginal result after variable and pro-rated fixed costs), and do you know you'll likely land at maximum 10% of offer price × chance percentage? If you expect more: what are your extra arguments?
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 →