Government tender processes…the devil’s in the detail

In 2020-21 there were 84,054 contracts published on AusTender (the Australian Government’s procurement information system) with a combined value of $69.8 billion.[1] If you add to that Commonwealth contracts below the reporting thresholds and State and local government procurement activities (not to mention government grant processes), there is no doubt that selling to government presents considerable opportunity for businesses. In Queensland in particular, potential opportunities are only going to increase in the lead up to the Brisbane 2032 Olympic and Paralympic Games.

For many businesses, participating in government procurement processes is a ‘business-as-usual’ activity. However, for those not already engaging with the government, working out where to start when faced with a government request for tender can be daunting.

In this article, Moulis Legal special counsel Lucinda Watson provides guidance and tips to consider when preparing a response to a government request for tender.

Timing is everything…

The closing date and time for an Australian tender response is non-negotiable and generally the procurement system being used for the process will prevent you from submitting a tender after the closing time. Planning and early preparation will be key to ensure you meet that deadline. You do not want to be out of the race at the starting gates!

You will likely need input from different people within your business so get your requests and instructions out early to give people plenty of time to respond.

Most government processes are administered through electronic systems. These systems are designed to assist tenderers (as well as the government entity receiving the tenders) which may, for example, flag where a response to a question is missing. While helpful, these systems can be time consuming to use so planning for this is critical. It is a good idea to have a practice run with a new system to make sure you can log in and upload documents and to get a feel for how long various steps are going to take.

Aim to submit your tender response at least a few hours before the tender closing time, just in case you encounter any technical issues uploading and submitting your tender.

…and read everything

Read all of the government tender documentation as a first step and take note of tender response requirements such as page or word limits and document format requirements. Some of these response requirements may be mandatory and some may be critical in order for your tender response to successfully load into the procurement system.

You may also have some questions you want to ask after reading through the material and you will need to get these in by the cut-off date for queries.

‘Must’ versus ‘should’

The language used in Australian tender documentation is deliberate. ‘Must’ really does mean must. It is important that you do not ignore a ‘must’ requirement or anything expressed as being mandatory or a condition of participation. Failing to meet or address these requirements will likely result in your tender being knocked out of the process.

A useful tip is to highlight all mandatory criteria and ‘must’ requirements when initially reviewing the tender documentation so that they are not missed in your final response, and to check that you can satisfy the requirements. If you have any gaps, these will need to be addressed as a priority.

What does the government entity really want?

At a minimum, a government entity will be looking for value for money. This does not necessarily mean the lowest price. While price is important, value for money is a wholistic consideration that will include the quality and suitability of the tendered solution and any risks associated with the tender.

Naturally, addressing the evaluation criteria in the request for tender and all of the requirements you are tendering for will be essential. In addition, there are a few clues you can look for to give your business its best shot and to help it stand out from the tendering crowd:

  • Are there any recurring themes in the government tender documentation? Value for money will likely be one, but there may be others, for example related to the technical specifications or the government’s desired outcome and objectives.
  • Pay attention to any weightings or order of priority applied to the evaluation criteria – this indicates to tenderers what is considered most important to the government entity and can provide guidance as to where to focus or prioritise effort when preparing a tender response.

Draft contract…surely that can wait until later

Where a draft contract is provided in the tender documentation and you are requested to respond with your level of compliance with that government contract, you need to factor a proper review of the contract into your tender preparation time. Your response to the draft contract will likely be assessed in terms of risk. While it may be tempting to shortcut this step, for example by responding that your position on the draft contract is subject to a full legal review that will be undertaken if you are successful, note that such a response may result in your tender being given a higher risk rating due to your position on the contract being unknown.

Generally, if you do not respond or indicate full compliance with the draft contract you will not be able to raise items later for negotiation, should you be successful in the process. That will mean that you will be expected to execute the contract as provided. It is worth noting that having a considered position on the draft contract at this point in the process will also help to streamline contract negotiations at the end.

If you would like any assistance managing a procurement process, responding to a request for tender or negotiating a contract, please contact Lucinda Watson, special counsel in the Government and Commercial Law team at Moulis Legal.

This memo presents an overview and commentary of the subject matter. It is not provided in the context of a solicitor-client relationship and no duty of care is assumed or accepted. It does not constitute legal advice.

© Moulis Legal 2022

[1] https://www.finance.gov.au/government/procurement/statistics-australian-government-procurement-contracts-

Key contacts
Lucinda Watson
Special Counsel