Loss of a chance compensated at 50%: legal error in rejecting an insurance certificate is not a purely formal defect
The Council of State awards reparatory damages of EUR 28,126.32 to a tenderer excluded from a public works contract, finding that the contracting authority's legal error — rejecting an insurance certificate solely because it was dated after the bid opening — resulted in a 50% loss of a chance of obtaining the contract.
What happened?
SCRL Sambre et Biesme, a social housing company, launched a negotiated procedure without publication for the construction of six dwellings at the cité Sainte Face in Pont-de-Loup. Three companies submitted tenders. Santo Colina submitted the lowest bid at EUR 562,526.33 excluding VAT but was not selected. The contracting authority considered its insurance certificate 'invalid' because it was dated 25 November 2015, i.e. after the bid opening on 18 November 2015. The contract was awarded to Dujacquier by decision of 10 December 2015, confirmed on 21 January 2016 after supervisory review. In ruling No 243,327 of 3 January 2019, the Council of State annulled the non-selection decision for inadequate reasoning: the fact that a certificate is dated after the bid opening does not mean it cannot establish coverage existing prior to that date. Santo Colina then filed a claim for reparatory damages under Article 11bis of the coordinated laws on the Council of State, seeking EUR 56,252.63 as a principal claim for loss of the contract and EUR 28,126.32 as a subsidiary claim for loss of a chance. On admissibility, Sambre et Biesme argued that Santo Colina's tender was void due to an abnormally low price for item 34.13 (insulation panels at EUR 0.91 per m², which the claimant acknowledged as an error — the actual price being EUR 12 per m²). The Council rejected this objection: the claimant had standing and the defendant did not demonstrate the incontestably irregular nature of the tender. On the merits, the Council examined the causal link. It dismissed the principal claim: it could not be established that Santo Colina would necessarily have been selected, since the authority could either have rejected for lack of proof of coverage before the deadline, or invited to clarify. However, the Council found that the illegality was not purely formal: it contained a legal error in the reasoning of the challenged act, consisting of rejecting the certificate solely on the basis of its date, whereas a certificate issued after the opening can verify a situation acquired previously. This error led to the loss of a chance of obtaining the contract. The Council assessed that chance at 50% — Santo Colina had a one-in-two chance that the authority would have invited her to supplement her documents, which would have allowed her to demonstrate coverage since 1 January 2009. As Santo Colina had submitted the lowest price and price was the sole award criterion, the indemnity was set at EUR 562,526.33 × 50% × 10% = EUR 28,126.32, plus compensatory interest at the legal rate from 21 January 2016 and moratory interest from the date of the ruling.
Why does this matter?
This ruling is a remarkable application of reparatory damages (Article 11bis) in public procurement. It shows that the Council of State draws a clear distinction between loss of the contract — which requires proving the tenderer would certainly have been selected — and loss of a chance, which only requires that a real possibility existed. The ruling confirms that a legal error in the reasoning of a non-selection decision is not a purely formal defect, even where the contracting authority could have reached the same conclusion through correct reasoning. Moreover, it illustrates that an alleged irregularity in a tender can only be raised for the first time before the Council of State if the contracting authority demonstrates its incontestably irregular nature — which is a high threshold.
The lesson
When rejecting a selection document, reason both in law and in fact: never reject a document solely on the basis of its date of issue if that document could attest to a situation existing before the deadline. As an excluded tenderer, carefully preserve all evidence of your compliance with the selection criteria from the moment you submit your tender — it will be your trump card in any subsequent reparatory damages proceedings. And know that loss of a chance, even estimated at 50%, remains compensable.
Ask yourself
As contracting authority: did I reject a selection document on a correct legal ground, or did I stop at a formal element (such as the date) without verifying the underlying reality? As tenderer: if my selection is refused and I consider an appeal, can I prove — with supporting documents — that I objectively met the selection conditions at the required date? Have I retained the necessary certificates for any subsequent reparatory damages proceedings?
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 →