'By submitting its bid the bidder accepts all clauses of the tender' — that clause does not save Janssen-Fritsen when it imposes its own payment terms
The award of the sports-hall flooring in Heers is annulled because the winning bid from Janssen-Fritsen imposed its own payment schedule — 30% on order, 50% at site start, 20% on handover — where the tender required a single payment on completion, and the standard 'by submission the bidder accepts the tender' clause cannot erase that deviation.
What happened?
The municipality of Heers renovated its sports hall in several lots; lot 2 ('sports flooring and equipment') was tendered through a simplified negotiated procedure with prior publication. The administrative tender imposed as payment scheme: a 30-calendar-day verification period from receipt of the invoice claim plus detailed statement of completed work, followed by payment within 30 calendar days — so a single payment after completion. The technical tender was drafted by DFM Architecten. Only two companies bid: Idemasport and Janssen-Fritsen. After a round of negotiation Janssen-Fritsen submitted a 'best and final offer' on 28 April 2021. The municipal executive decided on 10 May 2021 to award to Janssen-Fritsen and declared Idemasport's bid substantially irregular because it was 'not fully compliant with the technical requirements'. Idemasport went to the Council of State. In a first round the Council rejected the suspension action by judgment no. 251.067 of 25 June 2021. In the annulment action, however — and only after inspection of the administrative file containing Janssen-Fritsen's bid — Idemasport raised a new plea that turned everything around. What did the bid reveal? Janssen-Fritsen had split its offer into two 'private-law bids': one for infrastructure (Q542989, the floor) and one for sports equipment (Q539173). Each bid referenced its own general delivery and sales conditions (www.janssen-fritsen.be), which 'can only be departed from with Janssen-Fritsen's express written consent' and 'any other writing shall be regarded as non-existent'. For the flooring: part-invoices of 30% on order, 50% at site start, 20% on provisional handover. For the equipment: 'We will notify you of our payment terms on ordering' — i.e. not yet fixed at bid time. The municipality defended itself with the standard acceptance clauses of its own tender (Articles I.1 and I.13): 'By submission of its bid the bidder accepts all clauses of the tender and waives all contrary conditions, such as its own sales conditions, even if they appear in some annex to its bid.' The Council of State (Chamber President Paul Lemmens) rejects that reasoning. First: Janssen-Fritsen 'deliberately' imposed its own payment terms, differing per part of the offer — that is the opposite of waiver. Second: the deviation touches Article 95 of the Implementation Royal Decree and thus an essential tender provision (price is affected through shifted payment schedules). Third: at a minimum uncertainty remains as to acceptance of the tender's payment terms, and the absence of any reasoning in the award decision does not dispel that uncertainty. Fourth: Article I.13 of the tender itself implicitly acknowledges that standard clauses do not cover everything — it continues that the authority 'reserves the right to declare the bid substantially irregular' where the bidder has added conditions making it unclear whether it agrees without reservation. Such a provision would be redundant if every deviating condition automatically counted as unwritten. The Council annuls the award. Consequence: neither bid turned out to be regular (Idemasport's for technical reasons it had not challenged, Janssen-Fritsen's for its own conditions). The contract could be awarded to nobody — redress in kind requires a new procedure. The damages claim for 11,413.76 euros is reopened for further debate.
Why does this matter?
Standard tender clauses that automatically cancel 'all contrary conditions' are not a legal immunity shield. This ruling makes plain: the more explicitly a bidder embeds its own conditions in its bid, the less the acceptance clause can neutralise them. The threshold for 'irregularity due to own terms' is lower than many authorities think — especially where those terms affect price (here: via advance payments granting a substantial financing benefit). For bid managers this is a powerful plea: if the winning bid attaches its own general terms (by hyperlink to the website, or as annex), demand access and check whether those terms deviate from the tender. For vendors it is a warning: 'I just tack my standard terms on, everybody does' is a recipe for substantial irregularity — especially when the clauses alter the tender's payment scheme, liability or force majeure regime.
The lesson
If as a contracting authority you include an 'acceptance clause' and the winning bid still contains its own general terms (even only via a link to the company website): expressly state in the award decision what you did with those own terms — why they are not material, or why they do not deviate from the tender. Staying silent leads to annulment, not cover.
Ask yourself
The winning bid explicitly references its own general terms (even via hyperlink) and those terms contain a payment scheme, invoicing arrangement or liability regime that differs from the tender: ask for access before award, or expressly motivate in the award decision why this is not a substantial issue for you.
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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 →