One precautionary clause too many in your bid = a zero on the entire criterion
A bidder who notes that its 42-calendar-day delivery time 'may be extended by annual public holidays and factory shutdowns' does not get its bid declared irregular — but is awarded 0 out of 5 on the entire 'Delivery Time' criterion, which cost it the contract.
What happened?
The Province of West Flanders ran a framework agreement for supplying and installing phone booths and work alcoves. Two bidders responded: Profice Furniture and Kinnarps (Belgium). One of the award criteria was 'Delivery Time' (5 points). Profice quoted 42 calendar days but added that this term 'may be extended by periods of annual public holidays and factory shutdowns'. The evaluation report did not declare the bid substantially irregular but found that this wording 'makes it impossible to make a correct assessment' of the delivery-time criterion. Profice received 0 out of 5. The contract was awarded to Kinnarps on 21 December 2023. Profice took the matter to the Council of State. Intervening party Kinnarps argued the bid should have been declared substantially irregular under article 76 §1 of the 2017 Royal Decree as a forbidden reservation. The Council disagrees: the evaluation report did not conclude substantial irregularity, so only the actual consequence — the zero score — was up for review. Was that zero unreasonable? Profice argued the wording merely emphasised that holidays *can* extend lead times and applied to all bidders alike. The Council answers that the specifications expressly invited bidders to propose a 'precise' calendar-day term, meaning the bidder itself had to factor in possible holiday delays. By instead saying the term 'could be extended', Profice 'at least gave the impression that for certain periods it foresaw a longer delivery time than 42 calendar days' — without quantifying by how much. Add that it was unclear which holidays were meant: Belgian, or those at subcontractor factories abroad? The fallback argument under article 116 of the 2013 Royal Decree on contract performance ('Saturdays, Sundays and statutory holidays do not count' in working-day terms) fails because article 116 expressly distinguishes working days from calendar days, and the specifications asked for calendar days. The zero is not unreasonable on its face. Application dismissed.
Why does this matter?
Caution is often a reflex for bidders: 'we promise 42 calendar days, but just to be safe we'll add that holidays may slow us down'. This case shows that such an 'innocuous' clause hands the contracting authority a binary choice: declare the bid irregular, or score it zero on the criterion. Option 2 is often worse: your bid stays formally in the race but cannot win. The Council gives contracting authorities wide discretion here, provided they document why the wording undermines comparability. For bidders: state a precise number or nothing — no half-hearted hedges.
The lesson
If the specifications ask for delivery time 'in calendar days', state exactly that: one number, no footnotes, no caveats. Have a legitimate concern that holiday closures may stretch your timeline? Then bake that into a single honest, consolidated number (say, 50 instead of 42). A clause saying the term 'may be extended by...' creates exactly the ambiguity a contracting authority — and the Council — can use to justify a zero.
Ask yourself
Does your bid contain wording that says a stated term or value 'may' change, 'unless' something else, or 'subject to' something? Strip those clauses or fold the contingency into a fixed number — otherwise you risk both irregularity and a zero on the entire criterion.
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 →