Not every award decision can be suspended in time. Sometimes the contract is already concluded before the tenderer can react, or the suspension is rejected despite a flawed procedure. In those cases, the path to damages remains. The civil court can order the authority to pay lost profit and — in exceptional cases — participation costs.
The legal basis
The authority’s liability for an unlawful award decision is based on non-contractual liability law (Articles 1382-1383 old Civil Code, now Articles 6.1 and 6.2 new Civil Code). The tenderer who suffers damage due to the authority’s fault can claim compensation.
Additionally, the European Remedies Directive (89/665/EEC, amended by 2007/66/EC) provides a framework requiring Member States to provide effective compensation mechanisms.
The three conditions
To obtain damages, the tenderer must prove three elements:
1. Fault
The authority committed a fault — a violation of procurement rules. This can be a procedural fault (no price investigation, incorrect application of criteria) or a substantive fault (discrimination, inadequate reasoning).
An annulment by the Council of State is the strongest evidence of fault, but is not strictly necessary. The civil court can also independently establish the unlawfulness.
2. Damage
The tenderer has actually suffered damage. The damage typically consists of:
Lost profit. The net profit the tenderer would have realised if it had correctly received the contract. The calculation is based on the difference between the tender amount and the expected costs (including overhead, personnel, materials).
Loss of a chance. If the tenderer cannot demonstrate with certainty that it would have won, it can claim compensation for the loss of a chance to obtain the contract. The court estimates the probability and awards a proportional amount.
Tender costs. In exceptional cases, the tenderer can claim the costs of preparing the tender. However, Belgian case law applies this restrictively — only where the authority needlessly had the tenderer participate in a procedure that was unlawful from the outset.
3. Causal link
There must be a causal link between the fault and the damage. The tenderer must demonstrate that without the authority’s fault it would have obtained the contract (for lost profit) or had a real chance (for loss of a chance).
The procedure
Competent court
Damages claims are brought before the civil court (or the enterprise court, depending on the capacity of the parties). The Council of State is not competent to award damages — it only assesses the lawfulness of the decision.
Limitation period
The damages claim is subject to a 5-year limitation period from the day the injured party became aware of the damage and the identity of the liable person. In practice, the period starts running on the date of the award decision or its notification.
Burden of proof
The burden of proof rests on the tenderer, who must demonstrate:
- That the authority committed a fault.
- What damage was suffered (with substantiated calculation).
- That there is a causal link.
Practical considerations
Preserve your complete file. The tender, the procurement documents, the correspondence, the award decision and any further reasoning together form the evidence file.
Have a damage assessment prepared. A substantiated calculation of lost profit — with reference to your cost price calculation, margins and overhead percentages — strengthens your claim.
Consider the cost-benefit analysis. Court proceedings take long and cost money. Estimate the chance of success and the expected damages realistically before taking the step.
Combine where possible with the Council of State. A prior annulment by the Council of State significantly strengthens the position before the civil court.