Damages Claim in Procurement Law 2026 – Secondary Legal Protection

The damages claim in procurement law enables unsuccessful bidders to obtain monetary compensation after an unlawful award. Requirements, scope and limitation.

Definition: The procurement damages claim is the claim of an unsuccessful bidder for monetary compensation for the damage incurred through an unlawful award decision, where primary legal protection is no longer possible or was unsuccessful.

Last updated: January 2026 · Legal basis: § 181 GWB; § 341 BVergG 2018; Art. 2 para. 1 lit. c Directive 89/665/EEC

What is the Damages Claim in Procurement Law?

The damages claim is secondary legal protection par excellence: it gives the injured bidder the option, even after the award has been made, of receiving compensation for the contract lost due to a procurement law violation. The EU Remedies Directive 89/665/EEC expressly obliges Member States to grant a damages claim for persons injured by a violation of procurement law. In Germany, this claim is regulated in § 181 GWB, in Austria in § 341 BVergG 2018.

Requirements for the Damages Claim

A damages claim requires: (1) a violation of procurement law, (2) fault of the contracting authority, (3) causal damage and (4) attributability of the damage to the procurement violation.

1. Procurement Law Violation

An objective violation of procurement law provisions must exist (e.g. unlawful direct award, faulty exclusion decision, discrimination).

2. Fault

The contracting authority must have committed the procurement law violation culpably. In Germany, negligence is sufficient; the standard is that of a diligent contracting authority.

3. Damage

The bidder must have suffered measurable damage:

Negative interest (reliance damages): costs of preparing the bid, insofar as these were in vain
Positive interest (expectation interest): lost profit from the contract not obtained – this requires that the bidder would have received the award in a lawful procedure

4. Causation and Attributability

The damage must be causally based on the procurement violation. The bidder must prove (or at least credibly demonstrate) that they would have had a real chance of award in a lawful procurement procedure.

Scope of Damages

The scope of damages depends on whether positive or negative interest is asserted.

Negative interest: always assertable if the bidder proves that they would not have submitted a bid had they known of the procurement violation. Includes bid costs, lawyer's fees, travel costs for site visits, etc.
Positive interest (lost profit): requires that the bidder would have received the award in a proper procedure. Difficult to prove in practice; courts often recognise only a chance of award and limit damages accordingly (chance quota).

Limitation

Damages claims from unlawful procurement decisions become time-barred under the general civil-law limitation rules (§ 195 BGB: three years from knowledge). Special deadlines may result from procurement law; in Austria, § 341 BVergG 2018 regulates an independent limitation rule.

Relationship to Primary Legal Protection

Anyone who could have obtained primary legal protection but remained inactive can only claim the negative interest as damages (§ 181 sentence 3 GWB). This means: anyone who, despite the possibility of submitting a review application, did not do so, cannot claim lost profit.

Related Terms

FAQ

Can I claim damages even after the award has been made? Yes. The damages claim is specifically aimed at situations where primary legal protection is no longer possible or has failed.

How high is the lost profit I can claim? Generally the difference between the bid price and the costs of performance (contribution margin), multiplied by the probability that the bidder would have received the award.

Before which court do I assert the damages claim? Before the ordinary courts (Germany: regional courts; Austria: regional courts). The procurement chambers are not competent for damages claims.

Last updated: January 2026 All information is provided without guarantee. For legally binding advice, please consult a law firm specialising in procurement law.