Tendering: Practical Considerations

For some, tendering can be a formidable task. With so many issues and documents to take into consideration the process can seem overwhelming.

There are many other legal issues to take into account when tendering and also entering into contracts following a successful tender. We have set out below some of the key considerations.

Resources - One of the first points to consider is whether you have sufficient dedicated resources to effectively roll out the tender, and on time. Failure to comply with time limits may inadvertently lead to early sanctions or, in the worst case, termination.

Main Contract considerations - Main Contract considerations include clearly defining the scope of the work/services that are to be provided. The scope of work/services should clearly define the timeline and deadlines that are expected as well as specific and clear KPIs. It is important that you are clear about the main contractual obligations that you are subject to.

Intellectual Property Rights - One aspect of the contractual considerations that can often be overlooked relates to Intellectual Property Rights (IPR). It is important to ensure your own IPR is protected and that you have the right to use any necessary third party IPR.

Appointment of Subcontractors

Appointing sub-contractors can sometimes result in problems if the contractual arrangements with them are not implemented correctly and comprehensively. If possible, your arrangements with sub-contractors should be largely in place at the time of tendering.

Also, when appointing sub-contractors, carefully drafted contracts are key to ensuring that the legal position between you, the client and the sub-contractor is clear. It is usual for the relevant main contract provisions to be “back-to-backed” with the sub-contractor. This is to ensure that you can pass onto the subcontractor any liability that you may have to the main contractor as a result of the sub-contractor’s action or inaction.

For comprehensive advice on the legal issues relating to tendering and procurement, please contact Steve Thompson or Siobhan Williams.