Consortium (ARGE) in Public Procurement Law 2026

Consortium in public procurement: several companies apply jointly. Requirements, liability and distinction from a bidding consortium explained.

Definition: A consortium (ARGE) in public procurement law is a contractual association of several legally independent companies that jointly participate as one bidder in a procurement procedure and, in the event of contract award, perform the service jointly, while being jointly and severally liable to the contracting authority.

Last updated: January 2026 · Legal status: § 109 BVergG 2018, § 43 VgV, Art. 19 Directive 2014/24/EU

What is a consortium in public procurement law?

The consortium (ARGE) is the classical form of cooperation through which several companies join forces in public procurement to fulfil contracts that a single company could not or would not undertake alone. The ARGE is not a separate legal entity in the sense of a limited liability company; rather, it is a civil-law partnership (GbR in Germany, GesbR in Austria) or a comparable contractual form of cooperation. The participating companies – the consortium members – remain legally independent.

In procurement law, the consortium is expressly recognised. Art. 19(2) of Directive 2014/24/EU obliges Member States to allow groups of economic operators to participate in procurement procedures.

Distinction: Consortium vs. Bidding Consortium

In practice, the terms "consortium" and "bidding consortium" are often used synonymously, although they describe different perspectives. "Bidding consortium" refers to the association at the bidding stage, i.e. during the procurement procedure. "Consortium" (ARGE) refers to the same association from the perspective of performance after award. Legally, there is no material difference: both terms refer to the same construct.

Requirements in the Procurement Procedure

Contracting authorities may require consortia to adopt a specific legal form or to appoint an authorised representative (lead member) once the contract has been awarded to them.

Typical requirements:

Designation of a lead consortium member (point of contact, contractual partner)
Joint self-declarations and evidence (ESPD, criminal record certificates for each member)
Evidence of suitability: each member must demonstrate personal suitability; technical expertise and economic capability can be aggregated
Signature of the tender by all members or by the authorised representative

Contracting authorities may not exclude consortia outright unless there are objectively justified and proportionate grounds.

Liability

All consortium members are jointly and severally liable to the contracting authority for full and defect-free performance of the contract. This means: the contracting authority may hold any consortium partner fully liable for defects or breaches of contract, regardless of the internal allocation of tasks. The internal apportionment between consortium partners is governed by the consortium agreement.

Reliance on Capacities within the Consortium

Within a consortium, the members can pool their capacities and suitability characteristics without the need for a formal reliance on third-party capacities. If the lead member itself does not possess all the evidence, the resources of the other consortium partners are credited directly. This distinguishes the consortium from the reliance on subcontractors' capacities, which requires an additional commitment.

FAQ

Can a consortium consist of companies from different EU Member States? Yes, cross-border consortia are expressly permitted. They are a means of promoting cross-border participation by SMEs.

Must the consortium already be established as a GbR/GesbR at the time of tender submission? No. As a rule, a letter of intent from all members is sufficient. Formal establishment is often only required after award.

May the contracting authority limit the minimum size of a consortium? Only exceptionally and with objective justification. A general limitation to two consortium members would generally be disproportionate.

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