KnowledgeEuropean public tender

Teaming up for a public tender: consortium, subcontracting or relying on third parties

You miss the turnover requirement, you lack one reference, or the contract is too big for your own people. Then you can team up for a public tender, and Dutch law protects that right. But the form decides who is liable, who must prove what, and what you can still change later. And bidding together with a competitor is not automatically allowed.

Atvalio · November 2026 · 9 min read

Written by the Atvalio editorial team: people who spent years bidding on tenders themselves. About us

When does teaming up for a public tender make sense?

When you cannot win or deliver the contract on your own. Usually that is one of these three situations.

RequirementsA selection criterion you cannot meet aloneYou lack a reference, a certificate or the required turnover. Whether the requirement itself is reasonable is covered in selection criteria and knock-outs.
LotsMore lots than you can handleYou want to win more lots than you can serve alone. The Dutch policy rules on consortium agreements name separately tendered lots as a possible legitimate reason for a consortium.
CapacityToo large for your own peopleYou can do the work, but not next to your existing clients. A partner or subcontractor takes on the volume.

Under article 2.52, paragraphs 3 and 4, of the Aanbestedingswet 2012 (the Dutch Public Procurement Act), a public buyer may not forbid bidding as a consortium, and may not require the consortium to have a specific legal form during the tender. Nor may it exclude reliance on third parties. And under rule 3.5 H of the Dutch Proportionality Guide, a buyer sets no heavier requirements for consortia than for other bidders.

What is the difference between a consortium and subcontracting?

In a consortium (combinatie in Dutch), two or more companies bid together and together become the contractor. With subcontracting (onderaanneming), you are the contractor and another company performs part of the work for you. With reliance on third parties (beroep op derden), you bid, but use another company’s standing or experience to meet the selection criteria. That company is often your subcontractor too, but it does not have to be.

Question	Consortium	Subcontracting (with or without reliance on third parties)
Who bids?	All members together.	You alone.
Who is liable to the buyer?	The members. Buyers often ask them to be jointly and severally liable, so that each can be held to account for the whole.	You, as the main bidder. If you rely on a third party’s financial standing, the buyer can require that party to be jointly and severally liable too.
How do you meet the requirements?	The members may meet a selection criterion together.	On your own, or by relying on the standing or experience of the subcontractor or another company.
Legal form?	Not required during the tender. After award only if needed for proper performance.	An agreement between you and the subcontractor.

Sources: article 2.52 of the Dutch Public Procurement Act and the Dutch Supreme Court of 22 June 2007 (via PIANOo). Always read what the tender documents themselves ask.

In a consortium you share the contract. As main contractor you keep it, with all its risks.

Can you rely on another company’s capacity?

Yes. For financial standing, article 2.92 of the Dutch Public Procurement Act provides for this; for technical and professional ability, article 2.94. The legal link with the third party does not matter. You do have to show that you can really use that company’s resources, for example with a signed declaration. The buyer may attach conditions to it.

Financial standing: joint and several liabilityIf you lean on another company’s turnover or solvency, the buyer can require that you and the third party are jointly and severally liable for performance.
Experience and qualifications: the third party performsIf you lean on another company’s education, professional qualifications or relevant professional experience, that company must itself perform the works or services for which that ability is needed (article 2.94, paragraph 2). Borrowing a reference without its owner taking part does not work. See also references.
Critical tasks yourselfThe buyer can require certain critical tasks to be performed by the bidder itself (article 2.95). It may not simply impose a general percentage you must perform yourself (EU Court of Justice, Wrocław, C-406/14).
The third party is checked tooThe buyer also checks whether exclusion grounds apply to the third party. If a mandatory exclusion ground applies, you must replace it. For a discretionary ground, the buyer can ask you to.

Two pitfalls. Name every third party you rely on in your bid: after the deadline you can no longer add a new third party to fix a shortfall (EU Court of Justice, 4 May 2017). And you cannot rely on the income of a temporary consortium you were part of for your financial standing, unless you actually contributed to that work (EU Court of Justice, C-927/19).

Who fills in which ESPD?

In a European tender you declare in the European Single Procurement Document (ESPD, in Dutch the UEA) that you meet the requirements. When teaming up, it depends on each party’s role. How to fill in the form itself is explained in the ESPD.

Party	What it fills in
Each consortium member	Its own ESPD.
You, if you rely on a third party	In your own ESPD, in part II C, that you rely on another company.
The third party you rely on	Its own signed ESPD, with at least the details from part II, sections A and B, and part III (exclusion grounds).
A subcontractor you do not rely on	No ESPD of its own. You give its details in part II D, only if the documents ask for them.

If the ESPD of a consortium member or a third party is missing, your bid is incomplete.

Can you change the consortium or subcontractor later?

During the procedure: only to a limited extent. The starting point is that whoever applied or bid is the party that gets the contract. In MT Højgaard (C-396/14), the EU Court of Justice allowed a member to continue alone after its consortium partner went bankrupt, because it met the requirements itself and the other bidders were not put at a disadvantage. On 7 May 2026, Advocate General Kokott concluded in case C-268/25 that a consortium should in principle be able to replace a member affected by an exclusion ground, if it acted with due diligence and the bid does not change substantially. That opinion does not bind the Court; check whether a judgment has since been given.

During the contract, the rules on modifying public contracts apply. Replacing the contractor with another company is in principle not allowed without new competition. Replacing a subcontractor usually is. According to the EU Court of Justice (Wall, C-91/08), that is a substantial change only in exceptional cases, for example when the choice of that subcontractor was decisive for the award. Check in advance what the draft contract says about replacement.

Choose your partner before you bid. Changing after the deadline is rarely without risk.

Can you bid together with a competitor?

Sometimes. The ACM (Autoriteit Consument & Markt, the Dutch competition authority) says you may bid together with a competitor under conditions if you cannot do the contract alone. A consortium of competitors falls under the cartel prohibition in article 6 of the Mededingingswet (the Dutch Competition Act). The assessment framework is in the Beleidsregels combinatieovereenkomsten 2013 (policy rules on consortium agreements) of the Minister of Economic Affairs, which the ACM still lists among the rules in force.

Under the policy rules, a consortium in any case falls outside the cartel prohibition if:

Not competitorsYou complement each otherFor example a design firm and a contractor. You could not compete for the same contract.
Not aloneNeither of you can do it aloneNone of the members can perform the contract independently. If one party can do it alone, the cartel prohibition may apply.
Not appreciableSmall combined market shareThe consortium does not appreciably restrict competition. The policy rules set the limit at a combined market share of no more than 10%. Price-fixing or market-sharing agreements never qualify.
GroupCompanies in one groupGroup companies forming one economic unit.

If your consortium fits none of these four, it is not automatically prohibited. Under the policy rules, a consortium with a legitimate aim that goes no further than needed is unlikely to fall under the prohibition. Otherwise you must show that you meet the four conditions of article 6, paragraph 3. That burden of proof is yours, and each member must then actually perform a significant part of the contract.

What the ACM names as prohibited agreements: sharing contracts among yourselves, agreeing who takes part in which tender, talking to competitors about your bid, and performing contracts together when that is not necessary. In doubt, record in advance why you are teaming up. That assessment also belongs in your bid or no bid decision.

What goes into a consortium agreement?

Agree on the cooperation before you start writing. This is not legal advice: on a large contract, have a lawyer review the agreement.

Who does whatThe split of work, and who brings which reference, certificate or financial standing. This must match your bid and the ESPD.
Who speaks for the consortiumA lead partner who submits, asks questions in the clarification round and is the buyer’s point of contact.
Price and moneyHow you set the price, split the payment and share the bid costs.
Liability and insuranceHow you divide liability among yourselves if the buyer holds you jointly and severally liable, and which insurance each party has.
If things go wrongWhat happens if a member drops out or goes bankrupt, how you decide in a dispute, and when the consortium ends.

HOW ATVALIO HELPS

Atvalio reads the tender documents and lists the selection criteria, the requirements for consortia and third parties, and the forms that go with them, with the page each comes from. It holds the requirements against your company profile and shows which one you cannot meet alone, so you see where teaming up is needed. It warns you when a consortium partner or third party still has to provide its own ESPD or declaration, and takes teaming up into account in the bid or no bid advice. Who you team up with, in which form and on which terms, is your decision.

Atvalio Tenders launches in January 2027. On the waiting list, you can be the first to start a 14-day trial on a real tender.

Want Atvalio to do this for you?

How Atvalio works · Free calculators

Sources

READ ON

All articles