THE BOTTOM LINE
- Process Errors Have a Price: Public bodies that mishandle tender processes, such as by leaking confidential bidder data, can face significant financial liability for the fallout.
- “Loss of a Chance” Is Real Money: A company doesn’t need to prove it would have definitely won a contract to claim damages. A court can award compensation for the loss of a realistic opportunity to win, calculating its value based on the probability of success.
- Litigation Delays Can Be Costly: The court rejected a much larger damages claim for staff severance costs, attributing the loss to the claimant’s own strategic delays in challenging the tender outcome, not the public body’s initial error.
THE DETAILS
This case originates from a 2015 public tender process run by several Dutch municipalities for regional taxi services. During the tender, the municipalities accidentally published a file containing confidential business information of the incumbent provider. Realizing their error, they retracted the entire tender and launched a new one. However, the new tender had substantially different evaluation criteria: the weighting for “price” was reduced from 70% to 30%, while the “environment” criterion was increased from 10% to 30%. The original provider, who had lost their competitive advantage, subsequently lost the second tender and sued for damages. The court had already established in a prior ruling that the data leak was an unlawful act; this appeal focuses solely on the amount of damages owed.
The Amsterdam Court of Appeal awarded the company over €134,000 in damages for the ‘loss of a chance.’ The judges agreed that by retracting the first price-focused tender and replacing it with a new one under different rules, the municipalities had deprived the company of a tangible opportunity to win the contract. While the company argued it had an 80% chance of winning the original tender, the Court was not convinced, citing that the company was not a “price fighter” and faced market uncertainties. Instead, the Court estimated the lost chance at 20%—the same as any of the five bidders—and awarded 20% of the potential profits the company would have made over the contract’s lifetime. This decision underscores that even a statistical probability of success, if lost due to another party’s fault, can be converted into a concrete damages award.
However, the Court rejected the company’s much larger claim of over €730,000 for staff severance costs. The company argued that the delays caused by the botched first tender led to a gap between contracts, which nullified a collective bargaining rule requiring the new service provider to hire 75% of the previous provider’s staff. The Court, however, pinned the blame for this specific loss on the company itself. It found that the critical delay was not caused by the initial data leak, but by the company’s own decision to wait three weeks before legally challenging the award of the second tender. This delay forced the municipalities to implement a temporary “bridge” contract, which legally broke the chain of succession for staff transfers. The Court deemed this a self-inflicted injury under the principle of contributory negligence, absolving the municipalities of liability for these specific costs.
SOURCE
Amsterdam Court of Appeal
