By Paul Emanuelli

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

1.0       The Initial Mapping Statement

1.1       Purpose of the Initial Mapping Statement
The first step in your drafting process should be designing a clear and concise initial mapping statement that accomplishes the following:

  • explains what you are buying;
  • provides the road map for the rest of your document; and
  • serves as a framework to organize your team for the drafting process.

1.2       The Clean Room Exercise
To maintain efficiency in your process, reach a team-consensus and develop your initial mapping statement through a “clean room” exercise before you start drafting your detailed requirements.

1.3       Subject-Matter Experts
Your subject-matter experts should join in crafting an initial mapping statement that frames your objectives in clear, plain, nontechnical language. After the initial mapping statement is complete, the subject-matter experts can expand on the details using more technical terms in their discrete sections of the procurement document.

1.4       Communicating with Clarity
Adopt plain language as a general rule, even when covering complicated content:

  • Avoid using technical jargon, since it tends to obscure rather than clarify.
  • Where technical language is necessary, segregate it into discrete sections so that it does not interfere with your main ideas.
  • Don’t use vague terms.
  • Don’t use clichés or “filler” statements.

1.5       Managing the Editing Process
Writing and editing needs to be carefully controlled in a group setting in order to maintain efficiency in the drafting process:

  • Once you develop your initial mapping statement, give the subject-matter experts the time and space to properly document the requirements.
  • Clarify who has version control and co-ordinates the main document, and who has version control on each discrete part of your document.
  • Clarify the scope of required feedback when circulating a draft and distinguish between giving general feedback on main ideas and doing the specific editing and proofreading of near-final drafts.

2.0       Detailing Requirements

2.1       Avoiding Legalistic Loops
Avoid using unnecessarily legalistic drafting. In particular, avoid using the following poor writing techniques:

  • Dysfunctional Definitions
  • Perilous Punctuation and Abbreviations
  • Cross-Referencing Chaos

2.1.1    Dysfunctional Definitions
Improper definitions can lead to a great deal of imprecision in a procurement document and can disrupt the flow for the reader. When dealing with definitions, use the following strategies:

  • Don’t use Humpty-Dumpty definitions (definitions that distort the plain meaning of a term).
  • Avoid artificial acronyms, since initials obscure the meaning of words.
  • Locate definitions according to their use, so that
    ○ defined terms that are used throughout the document are located in a main definitions section;
    ○ defined terms that are used only in a specific subdocument are located in a separate definitions section within that subdocument; and
    ○ a term that is used only once is defined where it is used.
  • Don’t bury operative terms within definitions.
  • Avoid empty definitions, which add nothing to the plain meaning of a term.

2.1.2    Perilous Punctuation and Abbreviations
Check for improper punctuation and sloppy shorthand. For example, be careful when using i.e. as compared to e.g., be aware of the affect of commas and semicolons when structuring paragraphs, and avoid using “and/or” and the inherently ambiguous forward slash “/”.

2.1.3    Cross-Referencing Chaos
Avoid cross-referencing whenever possible. In particular, steer clear of circular or serial referencing that forces the reader to unnecessarily bounce around the document.

When cross-referencing is necessary, briefly describe the cross-referenced provision so that the paragraph containing the cross-reference can be read to completion without having to stop reading partway through to look up the full provision.

2.2       Incorporating Technical Content
Plain language should be used wherever possible. Using technical language is permissible when describing specialized subjects in a concise, accurate, and technically precise manner. When dealing with technical subjects, remember the following points:

  • Use plain language in the main parts of a procurement document and leave technical language to the appropriate subdocuments that are written by subject-matter experts for a more- specialized audience.
  • Be aware of the distinction between the plain meaning and technical meaning of a term, and know your intended audience.
  • Distinguish between helpful technical terms that facilitate accuracy and brevity in communication and gratuitous technical terms that serve no purpose other than demonstrating knowledge of obscure subject areas. Avoid using the latter terms.

2.3       The Seven Laws of Interpretation
When drafting procurement documents, be aware of how the laws of interpretation shape the meaning of your words. In particular, be aware of the following seven interpretive principles:

  • The Entire Document Rule: A document needs to be interpreted as a whole and therefore consistency in the use of terms across an entire document should be ensured.
  • Express and Implied Terms and the Ellipsis Technique: A delicate balance must be maintained between brevity and precision, where there needs to be a keen understanding of what can properly be “read between the lines” and what must be more thoroughly expressed in order to achieve a certainty of terms.
  • The expressio unius Principle: The expression of one thing may imply the exclusion of another (e.g., bequeathing “my Toyota and Cadillac, together with the tires on my Cadillac” implies that the Toyota does not come with tires).
  • The Class Rule: The scope of a general word may be narrowed via interpretation when it follows a list of words that fall within a narrower class of the general word (e.g., listing “lions, tigers, bears, and other animals” narrows the meaning of “or other animals” to exclude small animals).
  • The Association Rule: The meaning of a generic word can be affected by the words that are associated with it (e.g., in “death, disability, and illness,” the meaning of “disability” is narrowed to mean physical disability by the words “death” and “illness”).
  • The Ranking Rule: The inclusion or exclusion of words from a general class can occur when that general class is referred to at the end of a list of words (e.g., the list “tradesman, artificer, workman, labourer, or other person” narrows the scope of “other person” to include carpenters but exclude doctors and judges).
  • The contra proferentem Rule: As a last resort, interpretive ambiguities may be resolved against the party that drafted the document.

Also note that the laws of interpretation are guiding principles and are not intended to override the express intention of the drafter, which gives the drafter the ability to ensure precision through clear drafting.

3.0       Material Disclosures

3.1       Disclosure Duties — General
To meet transparency standards and fulfill your disclosure duties, you need to incorporate two discrete but related streams of information into your procurement documents: (i) information relevant to the contract, and (ii) information relevant to the competitive process.

3.2       Disclosure Relating to Contracts
Disclose all information material to the contract that could affect the supplier’s decision to bid or the supplier’s bid price, including the following:

  • the contract requirements (using neutrally drafted technical specifications), an accurate description of the goods and services (including anticipated quantities), and relevant performance timeframes and locations details;
  • any uncommon risks or performance conditions; and
  • the terms and conditions that will govern the performance of the contract.

3.3       Disclosure Relating to the Evaluation Process
Disclose the evaluation rules that will apply to the competition, including the relevant procedural rules, the threshold eligibility requirements used to screen suppliers, and the scoring criteria used to rank them.

4.0       Eligibility Screening Requirements
Assessing supplier compliance can attract legal challenge. You need to draft clear eligibility requirements that lend themselves to transparent and defensible evaluation decisions. Since the duty to reject non-compliant bidders typically applies to a tendering process, limit eligibility requirements to essential minimum standards.

5.0       Ranking and Selection Criteria
You need to ensure the thorough disclosure of bidder ranking and selection criteria. These transparency principles are a cornerstone of the open procurement process. They prohibit the use of hidden evaluation criteria and call for the disclosure of the following information:

  • the pricing structures, volume estimates, and scoring formulas that will be relied upon to calculate the total bid price;
  • a clear indication of whether supplier rankings will be based on the price only or on criteria that combine price and non-price factors;
  • all of the scored criteria that will be used to evaluate bids, including the methods of evaluating and the weightings of those criteria; and
  • the circumstances in which the purchasing institution may cancel its tendering process.

6.0       The Pricing Form

6.1       General Principles Regarding Pricing
Improperly structured pricing can cause significant problems in both the evaluation of tenders and in the performance of contracts. Given the core significance of price to the procurement process, integrate pricing into your procurement documents in a coherent and thorough fashion so that the evaluation of price is clearly connected to the required goods and services and to how payments will be made under the contract.

6.2       Specific Disclosures Regarding Pricing
Procurement documents should disclose the following information about the assessment of price:

  • a clearly prescribed pricing structure that lends itself to the consistent evaluation of competing bids without requiring post-bidding clarifications or price adjustments;
  • the volume estimates and scoring formulas that will be relied upon to calculate the total price;
  • a clear indication of whether supplier ranking will be based on price only or on a combination of price and non-price factors; and
  • the process by which price and non-price criteria will be individually scored and then tallied together, in cases where ranking is based on a combination of price and non-price factors.

7.0       The Legal Agreement
The proper final assembly of a procurement document requires the vertical integration of the statement of requirements and the pricing structure with the terms and conditions of the legal agreement. Purchasing institutions should ensure that they properly integrate all of the document components together with a legal agreement that incorporates the business requirements and payment terms of the contract. If this is not possible because the project team is going to market seeking solution-based proposals, then the solicitation document should set out a term sheet of minimum contractual requirements to then be negotiated with the selected proponent. Project teams should obtain experienced legal advice early in the planning process to help inform the drafting decisions surrounding the legal agreement.