Tender documents, bids and joint ventures: the public contract is won before it is filed
Nextica Law & Tax prepares and reviews the bid of the tendering company: reading the administrative and technical tender documents with the calendar in front of us, the ESPD and evidence of standing, award criteria and how the points are shared out, corrections, the internal joint-venture agreement under Law 18/1982 with its governance and joint liability, and the line between a contract, an agreement with the authority and an in-house assignment under arts. 47 to 53 and 32 of Law 40/2015.
Tender documents are not negotiated: you accept them whole or you do not bid. Which is why the only moment to negotiate them is beforehand, by reading them.
What's included
1. Reading the tender documents with the calendar in front of you
deadlines, award criteria and how the points are split, and what the documents require you to evidence and how.
2. Deciding whether to bid alone or in a joint venture
your own standing is compared against what is required and, if it falls short, a partner is chosen and the internal agreement drafted before anything is filed.
3. Preparing the administrative envelope
ESPD, responsible declaration, evidence of authority, and a check that no detail contradicts what is on the registers.
4. Writing the technical bid against the criteria, not against your brochure
each section answers the criterion that scores, in its order and within the permitted length.
5. Reviewing the price before committing to it
checking it covers the cost of the resources offered and the applicable collective agreement, and preparing the justification in case it is treated as abnormal.
6. Handling corrections and clarifications within the deadline, which is where technically strong bids are lost.
7. Where the subject matter is not a contract
analysing whether an agreement or an in-house assignment applies, and drafting the right instrument.
WHAT KNOCKS OUT A TECHNICALLY STRONG BID
In public procurement you almost never lose on the merits. You lose on form, and always for the same handful of reasons:
Inaccurate declaration
inaccurately reporting the information used to verify that you are not subject to a ban on contracting is itself a ground for a ban. The mistake on the form ends up costing more than the fact you were trying not to mention.
art. 71 Law 9/2017Lapsed classification
for works from an estimated value of €500,000, contractor classification is mandatory, and a classification that expired on the opening date shuts you out just as surely as never having held one.
art. 77 Law 9/2017 and RD 1098/2001Joint venture with no internal agreement
towards the contracting authority the members are jointly and severally liable for the whole contract, not each for their share. With no written split, whoever performs pays for whoever fails.
Law 18/1982Frequently asked questions
Can tender documents be negotiated?
In ordinary procedures, no: the tender documents are the law of the contract and bidding means accepting them in full. What does exist are two earlier routes, both with deadlines. One is the clarification stage the tender itself opens, useful where the documents are ambiguous rather than unlawful. The other is the special appeal against the documents themselves where they impose an unlawful condition —disproportionate standing requirements, an award criterion that is not objective—: it is filed before submitting the bid, not after losing it, which is when most people remember it.
What must the internal agreement of a joint venture say?
Everything the authority does not regulate, because towards the authority the members are jointly and severally liable, full stop. The internal agreement shares out the work and the result, sets the contributions and who funds cash-flow gaps, appoints the manager and defines which decisions require unanimity, sets out what happens if a member defaults or becomes insolvent, and governs exit and winding up once the contract ends. Writing it after winning means writing it from a position already lost.
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