Notarial Requirements When Tendering for an Overseas Contract

When you tender for an overseas contract, the notarial requirements usually cover four things: proof the company exists, the bid signatory's authority, formal declarations, and certified copies. A notary witnesses and certifies them, then DFAT adds an apostille or authentication. The real risk is timing, because the tender's closing date does not move.

Key takeaways

• Read the tender for its formality words. "Certified", "notarised", "apostilled", "legalised" and "sworn" each ask for something different.
• A notary witnesses a declaration and certifies copies. The notary does not check that the company is solvent, tax compliant or free of debarment. Those statements belong to the officer who makes them.
• Where the tender asks for a certificate Australia does not issue, ask the contracting authority in writing what it will accept instead.
• Only the Department of Foreign Affairs and Trade (DFAT) issues apostilles in Australia. Some countries also need embassy legalisation after DFAT.
• Plan the whole chain backwards from the closing date, with room for one rejection.

What does an overseas tender usually ask for?

Tender documents vary widely between countries and between buyers. The formal requirements still tend to fall into five groups.

• Corporate existence and standing. Evidence that the company is registered and is 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 buyer's own form.
• Formal declarations. Statements of no collusion, no bribery and no conflict of interest. Many also cover solvency, debarment, and tax and employment compliance.
• Status certificates. Tax compliance, social security contributions, licences and registrations.
• Certified copies. Financial statements, quality accreditations, professional registrations and experience references.

The first two are the familiar corporate pack. The page on notarising company incorporation documents covers the registry side, and board resolutions before a notary covers the approval side. The last three groups are where tenders differ most, and where Australian bidders run into trouble.

How do you read the formality words?

Tender documents use formality words precisely, and they are not interchangeable. A tender may also apply different words to different items in the same list. One item may need a plain certified copy, while the next needs a notarised copy with an apostille.

Go through the whole tender, including the annexes and any bidder instructions, and list every required item next to the exact formality it asks for. That list is what you send to the notary. It also shows at a glance which items need to go on to DFAT, and which only need a certified copy that the buyer's own rules may let someone else make.

Watch for the word original. Some buyers want the notarised original in the bid envelope, not a scan. Others accept an electronic submission but ask for originals only from the winning bidder. The tender rules decide, and they are often strict.

What if the tender wants a certificate Australia does not issue?

Tenders written for a local market often ask for certificates that exist there but have no Australian twin. Common examples are a certificate of good standing from the company registry, a tax clearance certificate, a certificate of social security contributions, and a certificate that no insolvency proceedings are open.

Australia issues some documents that cover part of that ground. A current extract from the Australian Securities and Investments Commission (ASIC) shows a company's registration and status. Others have no direct equivalent at all. Do not guess at a substitute and hope the evaluator accepts it.

Use the tender's formal clarification process to ask, in writing, what the buyer will accept from a foreign bidder in place of each missing certificate. The answer is commonly a sworn declaration by a company officer, supported by whatever Australian evidence exists. That might be a current ASIC extract, or a notarial certificate describing the company's status from the public record.

There are two reasons to use the formal process rather than a phone call. The answer is recorded. And in many public procurement systems, clarification answers are published to every bidder, so no evaluator can later say your substitute was never agreed.

Who makes the declarations, and what does the notary check?

A notary can administer an oath or affirmation and attest the declarant's signature. The notary checks the declarant's identity, and that they understand the document and sign freely. The notary may decline if something is wrong. What the notary does not do is investigate whether the company has paid its taxes, is solvent, or has never been debarred. The declaration is the officer's, not the notary's.

Do not take a tender declaration to a Justice of the Peace. A JP is a free witness for Australian purposes, but a JP's signature is not recognised overseas and cannot be apostilled. The receiving authority in another country expects a notary's signature and seal, which DFAT can then verify.

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

How do you prove the signatory's authority?

If the bid will be signed by someone other than a director, the buyer will usually want a power of attorney from the company. It is normally notarised and then apostilled or authenticated, and it comes with evidence that the people granting it could bind the company. That evidence is often a board resolution or an ASIC extract showing the directors.

A power naming the specific tender is stronger evidence than a general authority to sign bids, and some buyers insist on it. A general power can be reused across several tenders, but it may be refused. If you bid regularly in one market, ask whether a standing power will be accepted before relying on one. For how company powers are prepared and signed, see powers of attorney and declarations. Whether the power is valid under the destination's law is a question for a lawyer there, not for the notary.

How do you plan backwards from the closing date?

The chain that turns an Australian signature into something a foreign buyer will accept runs to other people's timetables. The notary, DFAT, sometimes an embassy, and sometimes a translator each set their own. Put that next to a fixed closing date and the notarial side of an overseas tender becomes mostly a planning problem.

1. Closing date, and the physical delivery deadline for originals if it is different.
2. Courier time to the submission address, with tracking.
3. Translation, if the tender wants documents in its own language. Ask whether the translation must be made in that country, or can be made in Australia.
4. Embassy legalisation, for a destination outside the Hague Apostille Convention.
5. DFAT: an apostille for a Convention country, or authentication for the rest. Check the country on the HCCH status table on the day.
6. Notary appointment with every signatory who is in Australia.
7. Clarification answers on any substitute certificates.
8. Underlying documents obtained, checked and current.

Check each body's current published timeframe for steps 4 and 5, and add a buffer for a rejection. A document rejected at the embassy often sends you back to the notary. The apostille step itself is explained in apostille and authentication. DFAT's own list of documents it can legalise shows which public documents can go straight to DFAT and which private ones must be notarised first.

Which items need which step?

Tender item	Usual notarial step	Then
Company registration evidence	A current ASIC extract, or a notarial certificate of the company's status	DFAT, as the tender requires
Power of attorney to the bid signatory	Signed by the company before a notary	Apostille or authentication
No-collusion or solvency declaration	Sworn or affirmed by the officer before a notary	Apostille or authentication
Financial statements	Notarised copy of the signed statements	As the tender requires
Accreditation or licence certificate	Notarised copy, with the original sighted	As the tender requires
Experience reference from a client	Often a plain signed letter; check the tender	Rarely anything more

A notary can certify a copy of signed financial statements, or witness an officer's or auditor's signature. The notary cannot certify that the figures are accurate. That is the auditor's job. Copies certified by a notary follow the same rules described in document notarisation: the notary must sight the original, not a scan or an earlier copy.

Is a standing tender pack worth keeping?

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

Where a tender has several lots, or wants originals both in the bid and in a separate qualification envelope, order extra originals at the same appointment. A second notarial original costs far less than a second appointment arranged in the last week. The company's registered details should also match across every document. A trading name on one page and the registered name on the next is a common reason for an evaluator's query.

Here is an illustration, not a real case

A Brisbane engineering firm bids for a design contract with a public agency in a European country. The tender asks for a certificate of good standing, a tax clearance certificate, a notarised power of attorney for the bid manager, and a sworn no-collusion declaration, all apostilled. The firm asks through clarification what it may provide instead of the two certificates. The published answer accepts a current ASIC extract and a sworn declaration by a director on tax compliance. The director confirms each statement with the finance team, then signs both declarations and the power of attorney before a notary. DFAT apostilles them, and the firm couriers the originals with a week to spare.

In short

An overseas tender usually asks for proof the company exists, the signatory's authority, sworn declarations and certified copies. The notary witnesses and certifies; DFAT apostilles or authenticates; some countries then need an embassy stamp. The notary never vouches for what a declaration says, so confirm every statement first. Ask the buyer in writing about any certificate Australia does not issue, and plan the whole chain backwards from the closing date.

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