Cover letters count: "valid for 1 month" alongside your bid = materially irregular, bid binned
Dolmans Landscaping wrote in the cover letter accompanying its bid for weed management across seven Limburg municipalities that "this offer is valid until 1 month after the offer date" — Infrax declared the bid materially irregular for deviating from the bid validity period of 90 days set out in the specifications, and the Council of State agreed: the cover letter could be read as part of the offer, even though it was not a completed tender form.
What happened?
Infrax cvba (a central purchasing body acting for fourteen Limburg municipalities, including Beringen, Bree, Lommel and Tongeren) tendered a sustainable, pesticide-free weed management framework agreement in November 2014, running until end of 2018. Award criteria: price (60 points), approach plan (40 points, including "sustainable weed management" at 24 points and "organisational capability" at 16 points). The specifications explicitly required a 90-day bid validity period from opening. Five bids opened on 8 January 2015. On 5 February 2015 Infrax awarded to NV Krinkels — Dolmans Landscaping Limburg, a Dutch company, contested at the Council of State, after which Infrax withdrew its own award on 17 March 2015. On the redo (25 March 2015), Infrax looked harder at Dolmans' bid and noticed that its cover letter stated "this offer is valid until 1 month after the offer date". Under article 95 of the Royal Decree on Placement 2011, an offer deviating from essential specification terms on timing is materially irregular and void. Infrax disqualified Dolmans and re-awarded to Krinkels. Dolmans went back to the Council of State on two main arguments: (1) the cover letter is not part of the bid because the specifications say "the bidder shall fill in his offer on the forms accompanying the specifications"; (2) even if the period were in the bid, the specification clause says "by submitting his offer, the bidder automatically waives his general or special terms of sale". The Council of State rejects both. The specifications themselves allow "any comments to be added as a separate annex" — which shows the offer is not exclusively the standard forms. Moreover, the cover letter itself called the tender forms and approach plan "annex(es) to this letter" and explicitly contained "the assumptions and conditions" of the bid. The clause excluding general terms doesn't prevent the contracting authority from applying article 95 when a material irregularity exists. Finally, the trust argument — "Infrax found my bid regular in the first round" — fails: a withdrawn decision is deemed never to have existed.
Why does this matter?
Bid managers tend to polish the tender forms and approach plan and treat the cover letter as commercial wrapping. This case shows that's legally risky: one line in a cover letter about validity, payment terms or "subject to..." can sink your bid. And the standard "general terms don't apply" clause is not a shield — it stops you from enforcing your terms, but it doesn't stop the buyer from reading a deviation as material irregularity.
The lesson
If you attach a cover letter, motivation note or executive summary to a bid, read it with the same red pen as the tender form itself. Cut every clause about validity, lead times, payment terms or "subject to" — unless it explicitly tracks the specifications. And don't lean on the "general terms excluded" clause as a safety net: it bars you from enforcing your terms, not the buyer from excluding your bid.
Ask yourself
Pull your last submitted bid and read the cover letter literally word for word. Does it say anywhere "valid until...", "subject to...", "payment within X days", "our delivery terms apply", "this offer supersedes all earlier offers"? Every sentence that adds conditions not in the specifications is a potential exclusion ground.
About this database
The Council of State (Raad van State / Conseil d'État) is Belgium's supreme administrative court. In disputes over public procurement — from contract awards to tenderer exclusions — the Council of State is the final arbiter. The rulings in this database are summarised by TenderWolf in plain language, with practical lessons for tenderers and contracting authorities. View all rulings →