By Paul Emanuelli

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

With all the rules, regulations, and red tape entangling the tendering process, we often spend more time dealing with secondary issues than we do focusing on the critical purpose of the purchasing process: buying what we need. As procurement professionals, that’s what we do, we buy things. As this discussion explains, to succeed at this task, the first thing you should do in any tender-call drafting process is develop an initial mapping statement that answers the basic question: What are we buying?

Clear Thinking Drives Clear Writing
For public procurement professionals, time is always of the essence. Our endless cycles of bidding and buying leave little margin or time for error; however, we can’t squander our time by leaping headlong into the drafting process without a clear game plan, as cutting corners at the front-end only compromises the quality of our documents, causing downstream delays and increasing business and legal risks. The more complicated the procurement project and the larger the drafting team, the more critical the need to slow down and get the initial mapping statement down right. This requires discipline and clear thinking.

As a procurement professional, you need to get to the point, and you need to do it fast. You shouldn’t speak in riddles or force your prospective suppliers to decipher impenetrable jargon. As William Zinsser observes in On Writing Well, to communicate effectively to your distracted reader, you need to first have a clear idea in your own mind of what you are a trying to communicate:

The answer is to clear our heads of clutter. Clear thinking becomes clear writing; one can’t exist without the other. It’s impossible for a muddy thinker to write good English. He may get away with it for a paragraph or two, but soon the reader will be lost, and there’s no sin so grave, for the reader will not easily be lured back.

In Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing, Stephen V. Armstrong and Timothy P. Terell explain that readers absorb information best if they understand its significance as soon as they see it, if the form of the information mirrors the substance, and if the information can be absorbed in pieces. To help the reader absorb your information, you need to provide the reader with a structural container for that information:

When you set out to communicate complex information, therefore, your first task is to create a container in your reader’s mind before you give them information. And that task never ends, because you should continue to create containers throughout the document whenever you are about to dump new information on the page. The containers’ function is to make readers smart – smart enough to understand the significance of every detail that follows as soon as they see it.

The first container in your tender call document should address the “What are we buying?” question. That statement should serve as the container and road map for the rest of the information that follows in your tender call. It should be the touchstone for everything else you do in your drafting process. If you find yourself getting lost along the way, chances are it’s because you forgot to focus on what you’re buying.

As Armstrong and Terrell explain, you need to get to the point quickly to establish credibility with the reader:

To make all of the work you put into understanding your audience pay off, you must bring it to bear very quickly in a document’s opening paragraphs. There at the start, in a few seconds, a reader can usually tell whether a writer is thinking pragmatically about a document’s usefulness, and whether he has the skill to shape it into a scalpel rather than a blunt instrument for operating on the problem it addresses. In those few seconds, you often win or lose the struggle to capture the reader’s attention and establish your credibility.

Since readers have little tolerance for information that is difficult to absorb, brevity must be balanced with accuracy, and simplicity with precision.

To achieve these objectives, unnecessarily complicated and cluttered language needs to be removed. Have you ever been at a meeting and wondered, “Am I the only person in this room who has no clue what they’re talking about?” Chances are, you weren’t. As Zinsser observes, in the world of business, jargon often obscures our ideas and hinders clear communication:

Who can understand the clotted language of everyday American commerce: the memo, the corporation report, the business letter, the notice from the bank explaining the latest “simplified” statement? What member of an insurance or medical plan can decipher the brochure explaining his costs and benefits? What father or mother can put together a child’s toy from the instructions on the box? Our national tendency is to inflate and thereby sound important. The airline pilot who announces that he is presently anticipating experiencing considerable precipitation wouldn’t think of saying it may rain. The sentence is too simple — there must be something wrong with it.

The use of technical language in procurement documents should be carefully controlled because it tends to obscure rather than clarify your objectives. Simplicity is the key to achieving clarity in your ideas and precision in your drafting. But unfortunately, the tendency to use unnecessarily complex language is deeply embedded within many specialized areas.

As James C. Raymond observes in the preface to Decisions, Decisions: A Handbook for Judicial Writing, clear writing calls for a direct relationship between the reader and the writer, where “the author at his desk has the illusion that he is lounging in his library late in the evening of a well-spent day, a glass of beer at his elbow and a personal friend in the opposite chair.” Yet, as Raymond notes, rather than building a relationship through our words, in a formal setting we tend to use words that create distance between ourselves and our readers:

Once we start putting words on a page or computer screen, we are tempted to become someone else, someone a bit more formal, a bit more learned, perhaps a bit stuffier than the persons we are around the house and on the golf course and at the grocery store. It is very hard to divest ourselves of the professional pose when we are writing about professional matters. But this is, in fact, what the best essayist have always done, and the best jurist as well, the judges whose work we like to read, whose work has made a difference in the legal profession precisely because it is both intelligible and memorable.

The challenge is to start identifying and removing unnecessary jargon whenever possible. Where technical language is essential, it should be segregated in discrete schedules and appendices so that it does not interfere with the reader’s ability to follow the flow of the main ideas. It is particularly critical to avoid using technical jargon when drafting your initial mapping statement.

Vague terms tend to undermine the clarity of your documents and increase the risk of disagreement and litigation. In Bennion on Statute Law, F.A.R. Bennion tells the story of how British statute drafter Sir Harold Kent often struggled with government officials who insisted on using vague terms in the laws he was drafting so they could buy themselves flexibility and shield their operations from legal challenge. Ironically, as Bennion notes, instead of preventing litigation, this practice actually attracted more litigation:

Kent’s last word on this really says it all. ‘I remember a clause of mine receiving the dubious compliment of “nice and vague” from a bureaucrat of seasoned experience.’ (Kent 1979, p 45).
It should perhaps be added in conclusion that the rise of judicial review since the above was written in 1979 has rendered it less likely that challenge will be avoided by the use of obscurity in drafting.

These “nice and vague” terms are litigation magnets, creating risk in statutes and in commercial contracts alike. If no one can agree on what a phrase means, that phrase has no proper place in your procurement documents.