Can the contractor be compensated for the loss of opportunity to participate in the public tender?

In Polish law, as in Slovak law, the injured party is entitled to compensation for actual damage (injury) and loss of profit. Damage in the form of loss of the opportunity to participate in the proceedings does not fall into either of these categories.

This is since in civil law, in order for damage to be considered compensable, there must be proof of a factual causal link between the event and the damage and, with respect to loss of profit, proof of a substantial likelihood that they will be obtained.

However, the loss of opportunity to participate in the tender procedure is a specific situation - the exclusion from the procedure has a real impact on the situation of the contractor, but the further development of the events is objectively undetermined, both the occurrence of damage and its non-occurrence are possible. Therefore, the conditions of the existence of a causal link and a high probability of damage cannot be met. 

According to German case law, damages for loss of profit are awarded only in exceptional cases and are very difficult to prove. Most such claims are unsuccessful.
German law draws attention to the distinction between negative and positive contractual interest. Compensation under negative contractual interest is, for example, the cost of participation in the proceedings, while positive contractual interest includes loss of profit. 

Compensation for loss of profit, on the other hand, is only possible if the contractor proves that it would have been awarded the contract if the procurement procedure had been conducted correctly. At the same time, a claim for damages is excluded if the contracting authority proves that the tenderer would have suffered damages or would not have been awarded the contract even if the contracting authority had acted lawfully (e.g. if there was another reason for excluding the bidder).

In practice (depending on the type and stage of the procedure), it is almost impossible to prove that a contractor would have been awarded the contract if the rest of the procedure had been lawful (especially in the case of multi-stage procedures, e.g. in a competitive procedure with negotiations). 

French case law refers to the possibility of claiming compensation for loss of profit. On the other hand, compensation for loss of opportunities within the meaning of the CJEU judgment is not considered by the French courts.

According to French case law, a tenderer who has been unlawfully excluded from the procedure may, within two months of the publication of the contract award notice, bring an action before the administrative court challenging the validity of the procedure.

Depending on the seriousness of the irregularity, the administrative judge may cancel or terminate the contract and may also order the public authority to compensate the unsuccessful bidder for the damage suffered as a result of its unlawful exclusion from the procedure. 

To date, French case law is well-established and distinguishes between three situations, depending on the degree of probability that the tenderer would have been able to win the contract but for the irregularities committed by the contracting authority:

• if the unsuccessful tenderer had no chance of winning the contract, no compensation will be paid;
  
• if the unsuccessful tenderer had a reasonable chance of being awarded the contract, it may be reimbursed for the costs incurred in submitting its tender;

if the unsuccessful tenderer had a serious chance of obtaining the contract, it will be entitled to compensation equivalent to the loss of profit suffered as a result of its irregular exclusion from the contract award procedure, including the costs it incurred in submitting its tender.  

Under Belgian law and case law, a tenderer who has been unfairly excluded from a procedure may claim damages, including loss of profit. In practice, loss of profit is only exceptionally recognized by the courts and is very difficult for a contractor to prove. 

In both restricted and open procedures, where price is the only award criterion, the “tenderer with the lowest price” has a subjective right to be awarded the contract. Otherwise, if such a tenderer is unlawfully excluded, it may claim a lump-sum compensation set at 10% of the amount of its tender (excluding VAT). This flat-rate compensation may be supplemented by compensation for the full amount of the loss if such loss is due to an act of corruption. 

In case law, there are some difficulties in determining the appropriate amount of compensation, especially in cases where price was not the only criterion for awarding the contract. 

One of the main problems of interpretation is the difficulty of establishing a causal link between the wrongful exclusion and the alleged damage. Courts carefully scrutinize the evidence presented by a tenderer to determine whether its exclusion was the direct cause of the loss it suffered. It can also be difficult to determine the appropriate methodology for calculating damages.  

Under Dutch law, an excluded tenderer has the right to claim damages for the loss of opportunity in the event of unlawful exclusion from the procedure.

However, in a claim for damages, the contractor must prove that the damage was caused by the wrongful exclusion. In practice, this is difficult to prove. 

This is because the contractor must prove that there was a probable chance that it would have been awarded the contract if the contracting authority had not unlawfully excluded it from the procedure. Compensation will not be awarded if the probability of winning the contract is low. The contracting authority may also prove that other tenderers submitted or would have submitted better bids. Therefore, it is difficult to clearly state in which cases there is a probability of winning the tender or how the amount of compensation should be determined.  

In the United Kingdom legal system, a tenderer who is unfairly excluded from a procurement can recover damages, usually on the loss of profits basis. In practice, however, it is difficult for a contractor to prove that it would have been awarded the contract if it had not been unlawfully excluded from the tender. 

To recover damages, a tenderer does not have to prove that it would have been awarded the contract had it not been for the breach of its obligations by the contracting authority. Rather, the tenderer must show that it had a chance of winning the contract (although the amount of compensation will be higher if the tenderer can show that it should have been awarded the contract). Damages may be awarded in addition to, or as an alternative to, an order for other remedies.
The difficulty of proving that a contractor would have been awarded the contract but for its unlawful exclusion is particularly significant in multi-stage procedures (e.g. a competitive procedure with negotiations). 

In order to justify an award of damages, the infringement must be considered "sufficiently serious" by the court. This is a relatively high threshold, and in assessing whether it has been met, the court will take into account various factors, including: (i) the importance of the rule that was violated, (ii) whether the violation was intentional, and (iii) how the contracting authority behaved after it became apparent that a violation had occurred. The weight given to each factor will vary from case to case, and no single factor will be determinative. In particular, the fact that the outcome of the proceeding would have been different in the absence of a particular violation does not mean that the violation itself is considered sufficiently serious.

Danish law does not provide for compensation for the loss of opportunity to participate in the proceedings. The determination of compensation is considered in terms of positive and negative contractual interest (as in case of Germany). The possibility of compensation in the form of positive contractual interest (i.e. lost profit) depends on the type of proceedings in which the exclusion occurred. 

Compensation for positive contractual interest can only be awarded if a tenderer proves that it would have been awarded the contract and the contracting authority would not have cancelled the tender. This means that:

• in the case of an open procedure with two tenderers - the contractor would be entitled to compensation unless the contracting authority could prove that the contractor would not have been awarded the contract if the contractor had not been excluded. Thus, there would be no difference between a claim for positive contractual interest and a claim for loss of opportunity.
  
• in the case of a restricted procedure - the situation would be different. The contractor would be entitled to compensation for negative contractual interest. However, it would not be able to prove damage under positive contractual interest because it did not submit a bid. 

The possibility for a tenderer unlawfully excluded from a public procurement procedure to obtain compensation due to loss of opportunity is not explicitly provided for in the legislation. Italian courts allow such damages, but only under certain conditions.

There is no automatic recognition of damages in the case of wrongful exclusion from the procedure. It is necessary to prove and demonstrate a serious probability that the contractor will obtain the expected benefit (e.g., the award of the contract). The mere possibility of winning the contract is not sufficient. 

The main difficulty in this type of case is to prove the actual existence of a causal link between the wrongful act and the event causing the damage (i.e. the loss of opportunity to obtain the benefit). 

Italian jurisprudence is inconsistent on this point. Some judgments require the existence of a reasonable probability that the award of the contract would have been thwarted by the unlawful decision of the contracting authority. In other cases, the courts hold that the "chance" is necessarily a hypothetical harm and that it is impossible to know whether a favourable outcome would have occurred or not. Therefore, it is only necessary to prove that the loss of opportunity was serious.