Many bidders then leave it at that. They think that there is no point in further litigation; it will not get them the contract. And they often think that compensation proceedings are pointless. For example, because it takes a long time and costs a lot of money. But also because it is difficult to prove that you would have gotten the contract in the end.
The Court of Justice of the European Union comes to the rescue of bidders. According to the ECJ, the tenderer does not have to prove that it would have been awarded the contract. Compensation can also be based on the loss of chance that the tenderer would have won the contract. There are several ways to calculate this probability damage. One obvious possibility is to multiply the budgeted profit in obtaining the contract by the probability that the contract would have been awarded to the bidder had the tender not been wrongly rejected.
It is important to note that this ruling concerns a European tender. However, it is reasonable to apply the case law of the CJEU to national tenders as well. The doctrine of probability damages has existed in the Netherlands outside procurement law for some time. The Supreme Court applied the damage of chance for the first time in 1997 (HR 24 October 1997, ECLI:NL:HR:1997:AM1905 (Baijings/mr. H.).
Source: CURIA – Documents (europa.eu)
