By Paul Emanuelli

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

Whether it’s overall strategic design-planning or sorting out the finer points for their specifications, evaluation criteria, and process rules, project teams tend to repeat the same mistakes when preparing their solicitation documents. This discussion will cover the top ten drafting dangers that are hindering your organization from reaching a higher level of solicitation drafting speed and precision.

1. No Design Plan
The biggest mistake a drafting team can make is to start drafting a solicitation document without first developing a clear design plan covering the five core project elements: (i) scoping statement; (ii) pricing structure; (iii) evaluation criteria; (iv) contract assembly strategy; and (v) tendering format. A design flaw in any one or more of these core elements will inevitably result in drafting delays and unclear content.

2. Bad Templates
Too many project teams waste their time reinventing the wheel and redrafting their standard terms because their base templates contain serious design defects. Unless an organization has maintained an updated playbook with a broad range of professionally designed templates, it will inevitably experience drafting gridlock with its project teams wasting valuable time making spot repairs to faulty templates instead of focusing on critical project details.

3. Unclear Project Scope
Far too many projects fail due to unclear project scoping. Midstream scope changes are a leading cause of drafting delays and can also undermine the ultimate defensibility of a contract award. Project teams need to lock down their core scoping decisions during design-planning, and then execute the project through document drafting, bid evaluation, contract award, and contract performance within the guardrails of those initial scoping decisions.

4. Flawed Pricing Structures
A solid pricing structure forms the foundation for every successful procurement. A weak pricing foundation is a key cause of project failure. Project teams should ensure that they develop a clear pricing structure that aligns with their specifications, integrates with their bid evaluation strategy, and anchors their contract management plan.

5. Material Disclosure Gaps
A tender call should have no trap doors. Whether it’s disclosing hidden site dangers, past contract volumes, or implied performance expectations, purchasing institutions should focus on transparency in their tendering documents so that contractors know what they are bargaining for when they bid on a project. As the cases have shown, the omission of material information can lead to bid disputes, project delays, and extra cost claims.

6. Ambiguous Criteria
Clear threshold requirements and transparent scoring criteria serve as the cornerstones of a defensible evaluation. Unfortunately, far too many drafters set their evaluation teams up for failure by drafting vague criteria under the misconception that this will give their evaluators greater flexibility. The hard truth is that hidden preferences expose the project to failed audits and costly bid protests.

7. Mysterious Process Paths
Many organizations fall into the trap of drafting crafty loopholes into their process paths to leave themselves room for post-bid improvisation. However, leaving things murky leaves your team exposed to process challenges and leaves your contract awards vulnerable to judicial review. If you want your project to succeed, your evaluation and award process paths should be rock solid, crystal clear, and free from hidden detours.

8. Fragmented Content Sequencing
A tender call is not a mystery thriller. There should be no plot twists or surprise endings. Avoid sending your readers into a free fall of detailed specifications, complex procedures, and convoluted criteria. Frame your content with a timetable of key process dates, a clear scoping statement, a simplified process overview, and a breakdown of main evaluation categories and relative weightings. Then, once you have defined the overall document structure, let the details flow in a logical sequence of self-contained appendices.

9. Recycled Parts
Drafters often try to cut corners by recycling spare parts from prior documents. This rarely saves time, since it tends to create an intermingled muddle of content that distracts the team from focusing on the critical details of their specific project. Instead of chopping and pasting from the recycling bin, project teams should start each project with a clean slate, using an up-to-date template and organizing their content into clearly separated compartments based on the structure of their initial design plan.

10. Chaotic Contract Terms
One-size-fits-all contract terms are sure to be a bad fit for your project. All purchasing contracts should contain the core provisions that tie your payment terms to your specifications and performance standards. However, your specific project requirements will inform whether you should add confidentiality clauses, include indemnities and insurance, incorporate intellectual property provisions, integrate dispute resolution and termination procedures, and also incorporate more detailed industry-specific specialized terms. Avoid overloading your solicitation with useless legal filler.

In Summary
A fine-tuned and efficient drafting process starts with a proper design plan and the selection of the appropriate tendering template. Project teams should then focus on aligning a clear scoping statement with their pricing structure. This sets the foundation for disclosing material performance conditions, evaluation criteria and award process paths. During the drafting process, the team should also be mindful of proper content sequencing and avoid the inappropriate use of recycled content. Finally, drafters should avoid using unnecessarily complicated contract boilerplate and only include legal terms that are relevant to the deal.