Invalidity of a Tender in Public Procurement 2026 – Grounds for Exclusion

Definition: A tender is invalid and must be excluded from the procurement procedure where it suffers from substantial formal or substantive defects that make a proper, equal-treatment-compliant evaluation impossible.

Last updated: January 2026 · Legal status: § 57 VgV, § 16 VOB/A, § 16b EU VOB/A, §§ 125–129 BVergG 2018

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What renders a tender invalid?

The invalidity of a tender leads to its mandatory exclusion from the procurement procedure and may not be remedied by the contracting authority through subsequent negotiation or generous interpretation. Procurement law distinguishes between mandatory grounds for exclusion, where no discretion exists, and grounds where the contracting authority may weigh up the circumstances.

Formal grounds for invalidity

Late submission

The most common ground for exclusion is the late submission of the tender. Tenders received after the tender submission deadline are mandatorily excluded — even where the delay is only a matter of seconds or where technical problems occurred on the procurement platform (provided this is not attributable to the contracting authority). This follows from the principle of equal treatment.

Failure to submit electronically

Above the EU thresholds, tenders must in principle be submitted electronically; paper-based tenders are — save for narrow exceptions — invalid.

Missing signature / missing qualified electronic signature

Tenders must be signed in a legally binding manner. In electronic procedures this can be done by means of a qualified electronic signature or — depending on national rules — by other forms of authentication. Where the signing is entirely missing, the tender is invalid.

Substantive grounds for invalidity

Modifications and reservations

Unilateral modifications or deletions in the procurement documents render a tender invalid. Tenderers may not unilaterally alter the contract documents; this would mean a uniform comparison was no longer possible. The addition of reservations or general terms and conditions that conflict with the procurement documents may also lead to invalidity.

Incomplete pricing

Where material price items are missing or the tender contains unclear pricing that makes evaluation impossible, it is to be treated as incomplete and therefore invalid. A price of "€0" may be invalid if it is clear that this is not a serious calculation (cf. low bid).

Failure to meet minimum requirements

Where a tender fails to meet the minimum performance requirements set out in the procurement documents, it must be excluded because it does not correspond to the subject matter of the tender.

Request for missing documents vs. exclusion

The contracting authority may, under certain conditions, request missing, incomplete or defective declarations and evidence — but not missing price information or substantive parts of the tender. The right to request additional documents applies to suitability evidence and formal/administrative documents, not to the price core of the tender.

FAQ

Can a tenderer rectify an invalid tender? No. Substantive subsequent amendments to the tender after the submission deadline are impermissible. Only missing or defective formal documents may be supplied subsequently at the request of the contracting authority.

What is the difference between an invalid and an excluded tender? Invalid describes the inherent quality of the tender; excluded describes the procedural act of the contracting authority that follows from it. In practice the two terms are often used synonymously.

Can a tenderer challenge their exclusion? Yes. A tenderer wrongly excluded can challenge the exclusion and — if not remedied — lodge a review application with the public procurement tribunal.

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