Notarial Requirements When Tendering for an Overseas Contract

A tender has a fixed closing date. The chain that turns an Australian signature into something a foreign contracting authority will accept — notary, DFAT, sometimes an embassy, sometimes a translator — runs to other people's timetables. Put those two facts together and the notarial side of an overseas tender is mostly a planning problem.

The companies that get caught are rarely missing a document. They start the chain too late, or discover in the last week that the tender asks for a certificate Australia does not issue.

What overseas tenders commonly ask for

Tender documents vary widely, but the formal requirements tend to fall into five groups:

• Corporate existence and standing — evidence that the company is registered and not being wound up
• Authority of the bid signatory — often a power of attorney from the company to the person signing the bid, sometimes on the contracting authority's own form
• Sworn or formal declarations — no collusion, no bribery, no conflict of interest, not insolvent, not debarred, compliant with tax and employment obligations
• Status certificates — tax compliance, social security contributions, licences
• Certified copies — financial statements, quality or industry accreditations, professional registrations, experience references

The first two are the familiar corporate pack; see the pages on company incorporation documents and board resolutions. The rest is where tenders differ.

Read the tender for its formality words

Tender documents use formality words precisely, and they are not interchangeable. "Certified", "notarised", "apostilled", "legalised", "sworn" and "original" each mean something different, and a tender may apply different words to different items. Go through the whole document and list each required item next to the exact formality it requires. That list is what you send to the notary.

When the tender asks for something Australia does not issue

Tenders written for a local market often ask for certificates that exist in that country but have no Australian equivalent: a certificate of good standing from the company registry, a tax clearance certificate, a certificate of social security contributions, a certificate of no insolvency proceedings.

Australia issues some documents that cover part of that ground. Others have no direct equivalent. Do not guess at a substitute. Use the tender's formal clarification process to ask, in writing, what the authority will accept from a foreign bidder in place of each missing certificate. Commonly the answer is a sworn declaration by a company officer, supported by whatever Australian evidence exists, such as a current ASIC extract or a notarial certificate of the company's status.

Two reasons to use the formal process rather than a phone call: the answer is recorded, and in many public procurement systems clarifications are published to all bidders, which protects you if the evaluator later queries your substitute.

Declarations: who makes them and what they mean

A notary can administer an oath or affirmation and attest the declarant's signature. The notary does not investigate whether the company has paid its taxes, is solvent, or has never been debarred. The declaration is the officer's.

That matters more in a tender than almost anywhere else. A false declaration in a public procurement can disqualify the bid, void a contract after award, or expose the company and the individual to penalties in that country. The officer making the declaration should confirm each statement with whoever actually knows — finance, legal, compliance — before the appointment. If a statement cannot be confirmed as drafted, raise it through clarification rather than swearing to it.

The signatory's authority

If the bid will be signed by someone other than a director, the contracting authority will usually want a power of attorney from the company, notarised and authenticated, together with evidence that the people granting it could bind the company.

A power naming the specific tender is stronger evidence than a general authority to sign bids, and some authorities insist on it. A general power can be reused across several tenders but may be refused. If you bid regularly in one market, ask whether a standing power will be accepted before relying on one.

Plan backwards from the closing date

1. Closing date, and the physical delivery deadline for originals if different
2. Courier time to the submission address
3. Translation, if required after authentication
4. Embassy legalisation, for destinations outside the Hague Apostille Convention
5. DFAT — an apostille for Convention members, checked against the HCCH status table on the day, or authentication for others; a notary cannot issue an apostille
6. Notarial appointment with every signatory in Australia
7. Clarification answers on any substitute certificates
8. Underlying documents obtained and checked

Check each body's currently published timeframe for steps 4 and 5, and add a buffer for a rejection. A rejected document at step 4 sends you back to step 6.

A standing pack, with care

Companies that tender repeatedly often keep a prepared set of notarised corporate evidence. That works until a tender measures recency from its own closing date, at which point last quarter's pack is stale. Keep the pack, but check each tender's recency rules before using it, and budget for refreshing it.

Order extra originals at the same appointment where a tender has several lots, or requires originals in both the bid and a separate qualification envelope.

Common questions

Can we submit scans and send originals later? Sometimes. The tender rules decide, and many are strict. Ask through clarification.

Does an apostille make our documents acceptable to the authority? It verifies the notary's signature and seal. Whether the documents meet the tender's requirements is for the evaluator.

Can the notary certify our financial statements are accurate? No. A notary can certify a copy of signed statements, or attest an officer's or auditor's signature. Accuracy is for the auditor.