expectation interest

Expectation interest (also known as positive interest) is a damages principle where a tenderer who was wrongfully passed over in a procurement procedure is compensated for the profit they would have earned had the contract been properly awarded to them. It goes beyond mere bid preparation costs, covering the full economic benefit the supplier lost.

How does expectation interest work?

Under the EU Remedies Directive (89/665/EEC), member states must ensure that damages can be awarded to persons harmed by breaches of procurement law. The directive does not distinguish between categories of damages, meaning both bid costs and lost profit can be recoverable — though the specific conditions are left to national law.

To claim expectation interest, a tenderer typically must demonstrate three things: the contracting authority committed a sufficiently serious breach of procurement rules, there is a causal link showing the tenderer would have won the contract absent the error, and there is a quantifiable economic loss. In the CJEU's landmark INGSTEEL ruling (C-547/22), the court also recognised loss of opportunity as a distinct compensable head of damage — separate from lost profit.

Key differences from reliance interest

• Expectation interest covers lost profit — placing the tenderer as if the contract had been performed
• Reliance interest covers only bid costs — placing the tenderer as if they had never participated
• Expectation interest requires proof that the tenderer would have won the contract
• Reliance interest may be claimed even where the procedure should have been cancelled

Why it matters

Expectation interest represents the most valuable claim available to a wrongfully excluded tenderer, but the evidential burden is high. Tools like Cobrief help suppliers identify errors in tender documents early, enabling timely action within the standstill period.

Across the EU/EEA, approaches to damages in procurement vary significantly between member states. While the Remedies Directive sets the framework, quantification criteria — including how to calculate lost profit — remain a matter of national law, subject to the principles of equivalence and effectiveness.