Loss of a chance quantified lot by lot: EUR 147,264 for three bailiff firms excluded from an information meeting
The Council of State awards reparatory damages of EUR 147,264.38 to three bailiff firms excluded from a service contract for tax recovery by the Walloon Region, quantifying their loss of chance lot by lot — from 50% to 75% depending on the number of tenderers per lot — and applying a 10% profit margin on unrealised turnover.
What happened?
The Walloon Region launched an open call for tenders in the form of a framework agreement for the appointment of bailiffs to recover regional taxes, divided into four lots by judicial district. On 2 March 2015, the Region organised a technical meeting to which only IT specialists from certain tenderers were invited, excluding the three applicant firms. On 5 May 2015, lots 1 to 4 were awarded to other tenderers, with the applicants ranked fourth. In ruling No 235,319 of 1 July 2016, the Council of State annulled these award decisions for breach of the principles of equality and transparency due to the discriminatory meeting. The applicants then filed a claim for reparatory damages (Article 11bis). In an interim ruling (No 245,033 of 1 July 2019), the Council found that the causal link between the illegality and the loss of a chance was established, dismissed the principal claim (loss of the contract), and reopened the proceedings to assess the amount of damage. A protracted debate on the calculation basis followed. The Region submitted statistical reports from the bailiff firms that had executed the two collaboration agreements of 2015 and 2016, requesting confidentiality on grounds of business secrecy. The Council upheld confidentiality, ruling that business secrecy protection outweighed the adversarial principle, while verifying the data's accuracy itself. To quantify the chance, the Council reasoned lot by lot based on the number of tenderers: 75% for lot 1 (3 positions out of 4 tenderers), 50% for lot 2 (3 out of 6), and 60% for lots 3 and 4 (3 out of 5). The alleged irregularity of a competitor's tender (exceeding the page limit) was rejected as a 'factual element' since it had not been established in the annulment ruling. The calculation started from total turnover 'all bailiffs combined' of EUR 8,310,739.37 (including 3% active outstanding cases), divided by three (one of three awardees), minus turnover actually received by the applicants (EUR 365,930), yielding EUR 2,404,316.46 divided equally across four lots. After applying the loss-of-chance percentages per lot, the unrealised turnover amounted to EUR 1,472,643.82. The Council applied a 10% profit margin by analogy with the statutory lump-sum indemnity, rejecting both the applicants' cost estimate of EUR 144,000 (which would imply a 90% margin) and the 30.29% rate from an auditor's report (based on all activities combined). The claim for a 50% increase for hypothetical contract renewal was also dismissed as late. The final indemnity was set at EUR 147,264.38, plus compensatory interest from 8 December 2016 (date the Region renounced the lots) and moratory interest from the date of the ruling.
Why does this matter?
This ruling is a textbook case on quantifying reparatory damages. It demonstrates how the Council of State differentiates the loss-of-chance percentage per lot based on the actual number of tenderers and available positions. It confirms that the 10% profit margin — borrowed by analogy from the statutory lump-sum indemnity — also applies when the contract is awarded by call for tenders rather than by adjudication, with no need for an expensive expert assessment. The ruling also illustrates the limits of the adversarial principle when confronted with business secrecy: the Council may base its assessment on confidential documents it verifies itself, without disclosing them to the applicants. Finally, it recalls that only the illegality established in the annulment ruling can underpin reparatory damages — an irregularity not adjudicated by the court cannot be mobilised as a 'factual element' to increase the loss-of-chance percentage.
The lesson
To quantify a loss of chance in a contract with multiple lots and multiple awardees, reason lot by lot by comparing the number of available positions to the number of tenderers: this ratio determines the loss-of-chance percentage, not a 'neutral' 50%. The profit margin is set ex aequo et bono at 10% of turnover, unless the tenderer provides convincing evidence of a rate specific to the contract in question. And remember: to claim a head of damage (such as contract renewal), it must appear in the introductory claim — a late quantification argument will be set aside.
Ask yourself
As a tenderer considering reparatory damages: have I identified and quantified all heads of damage from the outset of my claim? Can I substantiate the expected profit with data specific to the contract at issue, or should I expect the 10% lump sum? As contracting authority: if I organise an information or technical clarification meeting during the procedure, are all tenderers treated equally? If some are excluded, the award is vulnerable to annulment and a potentially very large damages claim.
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 →