By Paul Emanuelli

This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.

The greater the number of cross-references, acronyms, and definitions, or CRADs, contained in a document, the harder it is to read and edit that document. This leads to tremendous inefficiencies in drafting and interpreting your procurement documents. This discussion explains why drafters should strive to reduce the CRAD counts in their documents to a bare minimum by avoiding unnecessary cross referencing and deleting unnecessary acronyms and dysfunctional definitions.

Avoiding Cross-Referencing Chaos

Nothing disrupts the flow of a document more than cross-referencing. Repeatedly forcing the reader to pinball from one part of the document to another deadens the aerodynamic flow of your ideas. Additionally, cross-referencing can create gaps in the document or result in circularity as one concept is explained in reference to another, which, in turn, is explained in reference to the first.

You know there’s a serious problem when it becomes necessary to formalize model laws to regulate how cross-referencing is used. In fact, Article 16 of the European Parliament’s Joint Practical Guide  asserts the following rule:

References to other acts should be kept to a minimum. References shall indicate precisely the act or provisions to which they refer. Circular referencing (references to an act or an article which in itself refers back to the initial provision) and serial referencing (references to a provision which itself refers to another provision) shall also be avoided.

This principle should also apply to contract documents. Cross-referencing wastes time during the drafting cycle as you review and repair loose threads. Even after it is edited for consistency and accuracy, cross-referencing undermines the flow of the document for the reader. In his Legislative Drafting Guide, Kenneth L. Rosenbaum offers some practical advice and warnings about cross-referencing:

[C]ross-references complicate revisions. The drafter must verify cross-references after every change in the text. A simple renumbering or minor edit to the content of the target section can ruin a cross-reference hiding in another section.
Also, if you regularly use cross-references to incorporate substance, you may end up with a section that refers to another section that refers to another section that refers to another section. These chains of references drive readers crazy.
For these reasons, you should use cross-references with forethought. Use them to help the reader understand the text. Avoid references that force the reader to read several places in the law to understand what you could have just as easily put in a single place. And remember that keeping cross-references accurate will add work to later revisions.

Preparing and reading procurement documents is hard enough. You don’t need to create additional work for yourself or the reader through the unnecessary use of cross-referencing. The Joint Practical Guide provides the following useful direction for incorporating a cross-reference while maintaining the flow of your ideas:

16.7 A reference should be worded in such a way that the central element of the provision to which reference is to be made can be understood without consulting the provision.
Example:
Rather than: “Article 15 applies to exports to countries…”
use: “The control procedures laid down in Article 15 shall apply to exports to the countries…”

As this example illustrates, the use of cross-referencing should be consistent with the proper use of definitions: the reader should be able read and understand an entire passage without having to consult another part of the text. Once the general idea is conveyed, the reader can then decide whether to refer to the cross-reference. Whenever possible, avoid forcing your reader off the page, since the momentum of your ideas will be lost.

Dealing with Dysfunctional Definitions

Definitions can be deadly. Each defined term is a potential trapdoor of uncertainty. Improper definitions can lead to a great deal of imprecision in a procurement document. This section considers the following five common categories of dysfunctional definitions:

  1. Artificial Acronyms
  2. Humpty-Dumpty Definitions
  3. Misplaced Definitions
  4. Buried Operative Terms
  5. Empty Definitions

1. Artificial Acronyms

Acronyms use initials to obscure the meaning of a phrase or proper name. To add further confusion, rather than being contained in the definitions section for ease of future reference, acronyms are typically introduced by way of the “here and after rule” and are defined when they are first used in the document, making them harder to locate when the reader has to refer back to the original meaning.

While many drafters like acronyms because they appear to bring brevity to a document, they actually cause dead zones by distracting and confusing the reader. The reader must either make a mental calculation to remember what the acronym stands for or hunt backward to confirm the forgotten meaning of the assembled letters. By disrupting the document’s flow and the reader’s intake of ideas, acronyms undermine precision drafting.

In Decisions, Decisions, Mailhot and Carnwath note that judges should generally avoid using acronyms in their judgments since the brevity gained often comes at the expense of clarity and precision. The use of acronyms should be reserved only for universally understood abbreviations:

A set of initials of several words serves as an abbreviation and can form a word. It constitutes a useful shortening of words frequently used. For example, U.N., NATO, NAFTA, etc. These sets of initials have become part of the current language.
Conceived to make writing and reading easier, these methods of expression often become obstacles to communication or to the intelligent comprehension of the text for those who do not know their precise meaning. Often, the context will reveal their meaning but if not, the intelligibility of the text requires writing the words in full before using a set of initials.

In summary, avoid acronyms unless they have a universally understood meaning and are going to be used with sufficient frequency to add considerable brevity to the document. In these instances, define them when they are first used, to prevent the reader from having to leave the page. Also define them in the definitions section so that readers who forget what the abbreviation stands for can easily locate its meaning without having to search for the page where it was first introduced.

  1. Humpty-Dumpty Definitions

A single, poorly thought out definition can destroy the precision of a document. For example, consider the hardworking young lawyer who has taken the time to painstakingly define the term “Day” for his commercial contracts to include “Mondays, Tuesdays, Wednesdays, Thursdays, and Fridays” but to exclude “Saturdays, Sundays, and statutory holidays.” The young lawyer likes to incorporate his defined term for Day into all of his commercial contracts.

Now, consider the harm that this lawyer will cause if he is retained by his client to formalize a delivery contract with a key supplier. The parties have negotiated the performance terms to ensure that the supplier delivers the ordered goods within three days of receiving the order from the customer. The customer has even managed to get the supplier to grudgingly agree to guaranteeing delivery within three days no matter when the order is placed, even if the three-day period falls over a weekend or holiday.

Having reached a meeting of the minds with her supplier, the customer calls the young lawyer to formalize the arrangement in a written contract. She instructs the lawyer to include a clause that specifies that the supplier will provide delivery within three days of receiving the order. The lawyer dutifully drafts the provision, incorporating his ready-made definition into the definitions section and inserting a performance term into the main body that reads, “The Supplier shall deliver the goods to the Customer within three (3) Days of receiving an order from the Customer.” The client reads the clause in the draft agreement and thinks, “Perfect, my lawyer inserted the clause I asked for.”

The client, not being a lawyer, doesn’t notice that the first letter of “Day” is uppercased to signify a defined term, and doesn’t cross-reference back to the definitions section to notice that the term is defined to mean “business day.” Instead, she assumes that “Day” is a calendar day, as the parties had negotiated. She instructs her lawyer to send the contract to her supplier.

The supplier receives the contract, assumes that his customer has backed off on her unreasonable demand for three-calendar-day delivery, and signs the agreement. It’s now only a matter of time before this dysfunctional definition wreaks havoc on the commercial arrangement.

By distorting the plain meaning of the word “day” (calendar day) with his defined concept of “Day” (business day), the lawyer in this example is guilty of the drafting offence known as Humpty-Dumptyism. As F.A.R. Bennion explains in Bennion on Statute Law:

Another example of defect in meaning concerns the case where the drafter decides to flout an established definition…. [H]e employs a word with one meaning to denote something quite different. This may be called Humpty-Dumptyism, after the Lewis Carroll character who boasted “When I use a word, it means just what I choose it to mean — neither more nor less” (Alice Through the Looking Glass [sic], chapter 6).

The Humpty-Dumpty definition drafter distorts the plain meaning of a word or phrase. He confuses and misleads the reader by speaking in riddles. The clause would have been clearer if the young lawyer had left the generally understood meaning of “day” alone: “The Supplier shall deliver the goods to the Customer within three (3) calendar days of receiving an order from the Customer.”

As Kenneth L. Rosenbaum explains in Legislative Drafting Guide: A Practitioner’s View, legal drafters should resist the urge to use Humpty Dumptyisms, even in instances where stretching the meaning of a defined term can result in a shorter document, since misleading definitions serve as potential traps:

If you can do things in a clever way or a simple but somewhat longer way, choose the simple way. Don’t be tricky — you may end up tricking yourself or the next person who comes to amend the law.
For example, say you have this problem: “Tribal members” (i.e., members of indigenous tribes) are currently exempt from the requirement to obtain marine fishing licenses. The policymakers would also like residents of rural areas who are fishing for non-commercial purposes to be exempt.
What if we define the term “tribal members” to include residents of rural areas who are fishing for non-commercial purposes? Are we cleverly saving repetitive drafting, or are we inviting trouble?
There are at least three reasons not to expand the definition. First, the new text would no longer be using the common meaning of “tribal members”, and readers who did not carefully consult the definitions would be misled. Second, the term “tribal members” may be used somewhere else in the law, and changing the definition may have unintended consequences. Third, you may have created a problem for a future drafter who wants to add a provision that applies only to actual tribal member, not to rural residents.
The better approach is to write a separate provision that exempts rural residents.

In addition to distorting the meaning of a word, Humpty-Dumptyisms disrupt the flow of your document. Once your reader discovers that the document has booby-trapped definitions, she will be wary whenever she encounters a defined term. Rather than reading the entire provision to absorb the general meaning, she will be tempted to stop, bounce back to the definitions section, and then return to the page where the original term was used. This interferes with the aerodynamic flow of your ideas.

  1. Misplaced Definitions

Definitions are often organized in a single section for ease of reference. However, this can be counterproductive when your documents are long and complex with multiple appendices and schedules. While locating a definition in a central location is advisable when that term is used throughout your document, when a defined term is used in a particular appendix or schedule only, it should be defined in a discrete definitions section contained in that particular appendix or schedule. As Rosenbaum explains in Legislative Drafting Guide, you should distinguish between global and local definitions and locate them accordingly:

Ordinarily all definitions go in a single “definitions” or “interpretation” section. These are sometimes called the “global definitions”. If a term is only used in one section or part of the law, however, you can serve the reader by placing it at the beginning of that section or part, with an introductory phrase indicating its limited use (e.g., “As used in this section, “regulated farm” means…”).

This approach is particularly useful in documents where you may have multiple authors contributing discrete parts, or where different readers may be interested in specific parts only. It will be much easier to draft and read those separate parts if they are self-contained.

  1. Buried Operative Terms

Always maintain a clear distinction between main terms, often referred to as operative terms, and definitions. Operative terms, which set out the parties’ obligations, should always be separate, stand-alone provisions. Burying operative terms within definitions can confuse and mislead the reader. The following case study provides an example.

The Buried Operative Term
Assume the customer wants to specify that all deliveries will be made to Loading Dock A. The definition and operative term could read as follows:
Definition
Loading Dock A” means the northernmost loading dock located on the east side of the Customer’s facility at 1227 Shaw Street, which for greater certainty is labelled “A” above the bay door.
Delivery
The Supplier shall make all deliveries to Loading Dock A.
Now assume that the customer wants to ensure that the supplier closes the loading dock door before leaving the premises. The customer adds a handwritten amendment to the end of the definition, which her lawyer incorporates into the next draft:
Definition
“Loading Dock A” means the northernmost loading dock located on the east side of the Customer’s facility at 1227 Shaw Street, which for greater certainty is labelled “A” above the bay door, which shall be closed by the Supplier before leaving the premises.
Unless the supplier goes back to review the definitions, he may not notice that a new operative provision, reflecting a new obligation, has been inserted within the definition of “Loading Dock A.” The operative provision should not be included within the definition of “Loading Dock A” since it does not add to the meaning of that term. Rather, it is an operational requirement. Here is the better way to create this new obligation:
Definition
“Loading Dock A” means the northernmost loading dock located on the east side of the Customer’s facility at 1227 Shaw Street, which for greater certainty is labelled “A” above the bay door.
Delivery
The Supplier shall make all deliveries to Loading Dock A.
The Supplier shall close the bay door before leaving the premises.
The definition is preserved for its original purpose, which is to clarify the meaning of “Loading Dock A.” The new obligation is added to the operative provision, where it can be more easily understood to form part of the delivery obligations. Whenever you are drafting, always remember the distinction between definitions and operative provisions, and do not bury operative terms in your definitions.
  1. Empty Definitions

Drafting should not be a contest to create the most defined terms. Use definitions sparingly to give greater precision to the meaning of a term, but avoid them where the plain meaning is sufficiently clear and the definition doesn’t add anything.

For example, an Invitation to Tender (ITT) typically uses the term “bidder” to refer to a party submitting a bid. In the context of the instructions to bidders, the meaning of the word “bidder” is sufficiently clear on its own. Defining the term as “a party that submits a bid” doesn’t add anything to the plain meaning. It only adds another unnecessary definition.

With additional empty definitions, the presence of too many uppercased terms tends to drown out the terms that actually require defining. For this reason, keep definitions to a minimum, avoiding empty, cluttering definitions that add nothing to the plain meaning of a word.