Tendering and Process Contracts

Muscat Tanzer
Mar 2025

Tendering and Process Contracts

This article on tendering and process contracts is the second article in our five-part Probity, Procurement and Tendering Article Series.

Requests for Tender (RTFs) have traditionally been viewed as invitations to treat, that do not create a legal or contractual obligation until a tender is accepted by the party inviting the tenders. However, a process contract can arise as are sult of a term within an RTF that constitutes an offer, which when accepted or complied with (generally by the tenderer submitting its tender) brings about a separate binding contract, or “process contract”. The implications of a process contract can be far reaching, due to the legal obligations that arise. As a result, the party inviting tenders must pay close attention to the tender process and draft the RFT to reduce the risk.

Managing process contract risk requires the procurer to:

carefully consider if it wants the tender process to form a binding legal relationship;
pay close attention to the terms of the criteria for selection (or exclusion) of a tender;
ensure the RTF is drafted so there is no presumption that a binding contract will arise if a tenderer complies with certain criteria; and
draft disclaimer clauses clearly and consistently with terms of the RTF.

Muscat Tanzer is a multi-faceted law firm providing end-to-end solutions. We bring a wealth of top-tier experience with a deep commitment to delivering exceptional legal solutions for our clients. Our team’s expertise spans large-scale infrastructure projects, complex construction and commercial disputes and nuanced government regulations and policy, allowing us to offer tailored advice and strategic insights to our clients in a variety of industries.

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Muscat Tanzer, founded by Paul Muscat and Craig Tanzer, is a specialist law firm on the Gold Coast providing expert legal services in infrastructure, construction, procurement, probity, commercial, and government law across Australia. Committed to growth and excellence, the firm continues to expand its team and fosters future legal talent through internships and graduate opportunities.

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Tendering and Process Contracts

Tendering and Process Contracts

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