Bidding Consortia in Public Procurement 2026

Definition: A bidding consortium is the voluntary, temporary grouping of two or more legally independent operators that wish to participate jointly in a public call for tenders and to perform the advertised work or service on a divided-task basis.

Last updated: January 2026 · Legal basis: Art. 63 Directive 2014/24/EU, § 43 VgV, § 29 UVgO, § 20 BVergG 2018, GWB

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What is a bidding consortium?

Bidding consortia allow operators that cannot meet all requirements of a call for tenders on their own to act jointly as a single bidder. They are expressly recognised in procurement law and play a particularly important role on complex, large or cross-trade contracts. Typical examples are the cooperation between operators from different trades on works contracts or between IT and consultancy firms on digitalisation projects.

Legal basis

Procurement law in principle requires contracting authorities to admit bidding consortia. Under Art. 63 Directive 2014/24/EU and § 43 VgV, contracting authorities may not generally exclude consortia or impose disadvantageous conditions on them from the outset. A duty to transform into a specific legal form (e.g. to set up a GmbH or AG) may not be imposed.

Requirements for the consortium

Bidding consortia must be clearly identified in the tender and their internal allocation of tasks set out. Typical requirements:

• Identification of all members of the consortium
• Designation of an authorised representative (lead member)
• Submission of a power of attorney / consortium declaration
• Description of the planned division of tasks
• Suitability evidence from all or individual members (depending on the requirement)

Liability of the members

All members of a bidding consortium are jointly and severally liable for performance of the contract. The contracting authority can demand full performance from any member, irrespective of the internal allocation of tasks. Joint and several liability is a mandatory feature of a bidding consortium and cannot be contracted out of.

Suitability evidence

Suitability requirements may be met by the members of the consortium jointly, drawing on the aggregated resources of all members. For technical suitability requirements (e.g. reference projects), the references of individual members can be combined. Certain suitability requirements (in particular authorisation and reliability) must be met individually by each member in respect of its share of the work.

Distinction from anti-competitive arrangements

Bidding consortia are only lawful under procurement law where the members could not individually perform the contract. Where operators form a consortium even though each of them would be suitable and capable on its own, this can amount to an unlawful restriction of competition (cartel agreement), prohibited under the GWB or under Art. 101 TFEU. The dividing line between permissible consortium and unlawful cartel arrangement must be assessed case by case.

FAQ

Can the contracting authority restrict the admissibility of bidding consortia? Only in duly substantiated exceptional cases and where a contract-specific interest has been demonstrated. A blanket restriction is unlawful under procurement law.

Does the consortium have to be formally established at the time of tender submission? It must at least be identified in the tender. Formal incorporation under corporate law is only required if the contract is awarded; however, many contracting authorities require a consortium declaration to be submitted with the tender.

What happens if a member of the consortium drops out during performance? This must be governed by the contract. As a rule, the remaining members continue to be jointly and severally liable. Replacement of a member during performance is problematic under procurement law and may amount to an impermissible amendment of the contract.

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