Harper James is a modern, full-service UK commercial law firm advising ambitious businesses on the laws of England and Wales. When two or more businesses submit a tender together, a carefully drafted agreement sets out how they will prepare the bid, share responsibilities and manage the relationship if the contract is awarded.
The parties should decide whether they are forming a consortium, appointing one lead contractor with subcontractors, or creating a joint venture. The agreement should identify the contracting party, each participant’s work package, required resources, approval processes and responsibility for the tender response. It should also state who owns bid materials, how costs are shared and what happens if the tender is unsuccessful.
A consortium agreement should address confidentiality, permitted information sharing and competition law. This is particularly important where participants compete in other markets. Pricing, market allocation and other sensitive information should only be exchanged for the legitimate purpose of preparing the bid, with clear access controls and named decision-makers. Further guidance on commercial collaboration provides useful context for reviewing the wider contractual framework.
The agreement needs to distinguish between liability during the bidding stage and liability under the eventual public contract. Participants should agree responsibility for inaccurate tender information, missed deadlines, regulatory breaches and third-party claims. The parties should also settle whether liability is several or joint and several, whether insurance is required, and how warranties, indemnities and liability caps will operate.
Other practical provisions include intellectual property ownership, data protection responsibilities, use of confidential information, audit rights and records retention. If the bid involves personal data, the parties should establish controller and processor roles and the measures required under UK GDPR. The agreement should also cover staff, equipment, licences and approvals needed to deliver the proposed service.
The Procurement Act 2023 is now in force for covered UK public procurements, making transparency, exclusion and supply-chain issues important parts of bid planning. A collaboration agreement should therefore explain how the parties will respond to clarification requests, conflicts of interest, due diligence and any proposed changes by the contracting authority. It should also provide a process for replacing a participant, handling a failed bid, dealing with withdrawal, and ending the arrangement after contract completion.
The next step is to prepare a responsibility matrix alongside the agreement. List every tender deliverable, owner, deadline, approval requirement and evidence source. Then test the draft against the proposed public contract, procurement documents and delivery model. This exposes gaps before submission, when changing roles, pricing assumptions or risk allocation is more difficult.