Having been on both sides of the tendering process for many years, we understand the excitement and sheer slog of writing a tender; the agonising wait to find out the result; the thrill of success and the disappointment (and sometimes incredulity) of failure.
In advising governments on the evaluation of tenders, we are also familiar with the range of responses received and how often tenderers make common errors and fall into familiar traps.
So with both perspectives in mind, the following are some simple suggestions for maximising your chances of being selected as the winning tenderer.
Value for money is the key
For a tender to be successful, the government agency must be satisfied that the procurement achieves a value for money outcome. This is a core rule.
Do not be afraid of the value for money rule. It is your friend. Make use of it. Whilst you should not slavishly say that you are the best value for money, you should seek to demonstrate why your solution is value for money. Be bold and clearly state what tangible benefits your offer will deliver to government.
Address the evaluation criteria
The evaluation criteria (or similarly named criteria) are one of the most important elements of the tender process. These criteria are usually the basis upon which the government agency will determine whether your tender demonstrates value for money. You should address these criteria directly and provide all relevant information to demonstrate, clearly and concisely, how you meet each requirement. Do not assume that you will be given the opportunity to clarify or supplement your tender. Invest up front in presenting the most compelling argument you can against the evaluation criteria.
Read and understand the conditions of tender
It may sound obvious, but read, understand and comply with the conditions of tender. We often see tenders that are non-compliant with or one or more elements of the conditions of tender. Whether or not this is inadvertent, it means the government has to work out how to manage the non-compliance and reflects poorly on your competence as the tenderer. In turn, this may diminish the value for money assessment or lead to your tender not being admitted to evaluation.
If you have been asked to submit a statement of compliance regarding a draft contract, think carefully about your non-compliances. In particular:
- Try to maximise your compliance with all government policy requirements. Agencies often have no choice about the policy that they (and you as a contractor) must comply with. Non-compliance with a policy requirement may be considered to be a significant risk. However, if a particular policy appears to be onerous or expensive to comply with, submit a price for both compliance and non-compliance. This will allow the government agency to make an informed decision regarding whether it requires compliance.
- Consider each legal non-compliance carefully. Generally, the fewer the non-compliances, the better the value for money assessment. Also, remember to consider your non-compliances in light of the risk profile. Government contracts have a unique risk profile. For instance, a government contract may be perceived to have a risk of political interference and public disclosure. However, they also usually have a lower risk of non-payment (generally, insolvency is not a risk). In addition, it is arguable that (as the law currently stands) implied into government contracts is an obligation of good faith on the part of the government agency. Issues such as these should be considered when assessing the overall commercial risk to the contractor.
- Carefully consider your response on key risk allocation mechanisms, such as limits on liabilities, indemnities and insurance. Government agencies generally have a standard position on these issues, which they will expect you to generally comply with. However, if you think there is a better, smarter and more cost effective way to allocate risk, propose the alternative in your tender and provide the associated pricing. But also make sure that you price a compliant tender. A common bugbear for government agencies is discovering that tendered pricing does not reflect the requirements set out in the request for tender and that, instead, a tenderer has produced its tendered price based on an assumption that its offering will be accepted entirely by government. The result is tendered pricing that is difficult to properly evaluate and which is likely to change if tendered positions are not accepted by government.
Price within the published budget
It is worth noting that some agencies publish budget information. This may inform you of the government agency's budget constraints. If the price of a tender is over the published budget, you should consider very carefully how you have priced risk and whether your tender is competitive.
Be on time
The rule "better late than never" generally does not apply to tenders. It is vital you submit your tender on time. Even if you have missed something, it is better to submit with the omission and try to correct it later (this may be possible during clarification or during negotiations – if successful) than to be late. Put bluntly, if you submit your tender late you risk immediate exclusion. If you submit on time with errors, you have a chance of correcting the errors.
Demonstrate that you will be easy to manage
When you submit a tender, the government agency may have little other information about your organisation other than your tender, so it is vital that the tender gives an accurate impression of your organisation.
One mistake often made is when an organisation (particularly a non-Australian based organisation) uses tender writers who are based overseas or inexperienced in preparing tenders for the Australian Government. Those tenders are often drafted in a way that demonstrates a lack of understanding of the Australian market and Australian Government contracting.
If a tender response indicates that it will take time and money to bring your organisation up to speed with Australian Government requirements and processes, then this may be a factor in the government agency's evaluation of the value for money presented by your tender.
Organisations should familiarise themselves with government requirements and consider using an Australian-based organisation familiar with tendering to government to write or at least review the tender to minimise the risk of giving the wrong impression.
Show that you know the government agency
Each government agency has its own unique operating environment and objectives. It is important for your tender to be constructed based on the particular government agency you are dealing with, how it operates and what its issues are. A tender that demonstrates familiarity with that particular government agency, or the willingness to invest in building familiarity, is likely to be viewed as a "safer bet" than a new comer.
Think about your evaluators
Your evaluator is likely to have written at least part of the tender documents. So think about them when you write your tender. Whilst you will only be assessed on a value for money basis, do not be tempted to show how "clever" you are by pointing out any perceived errors in the tender documents, particularly non-substantive ones. You want to give the impression of being an organisation that will work collaboratively with government and one that is on their side. Again, these are issues that may go to a value for money assessment. If you think that there are errors or inconsistencies in the request for tender, there will usually be a tender clarification process where this may be raised (but do so in a sensitive manner).
Tender for what has been asked for
It is very easy (particularly for former providers) to fall into the trap of thinking that you know better than the government agency about what it wants and then submitting a tender for what you believe the government agency wants (and not what it has asked for).
Do this at your peril. Remember, the government agency can only assess you against what it has asked for (regardless of whether or not that correctly represents what it wants). If you genuinely believe that the tender contains an error or does not set out what should be requested, then:
- submit a clarification question seeking guidance (on the assumption the conditions of tender allow for this – and noting that your question and answer may be provided to other tenderers), or
- submit a compliant tender and also separately set out what you think should have been asked for.
Be innovative where you can
Always ensure that your tender meets the government's stated requirements. However if you have an innovative solution, offer this as well. Even if the government agency chooses not to accept your innovation, it may demonstrate that you are thinking about the government agency and its needs.
Follow the structure of the conditions of tender
Unless you have been given guidance about the structure of your tender, use the same terms and identical headings to the conditions of tender. This will make the evaluator's task of navigating your tender that much easier.
Tender should be content rich, plainly written and free of fluff
We understand the enthusiasm that surrounds the writing of tenders and the desire to express in writing your genuine wish to do the job. But take care to ensure that the tender does not appear to be gushing and without substance.
Some of our general rules are:
- Avoid overused terms when you are describing what you can do such as "synergies", "proactive" and "leverage" unless you actually mean it.
- If you claim that you have experience or expertise in a certain area, justify your claim with examples or references from satisfied customers on similar projects.
- Use plain English and correct grammar. Avoid using jargon unless you are confident that it is appropriate.
Check your tender carefully
Ask for your tender to be proof read and checked for overall cohesion and typographical and grammatical errors.
One of the most common traps is the use of standard or corporate text (which jars stylistically) or text from other tenders (and yes, we have seen bids that have text that refer to the wrong Department and product).
Your bid is your bid
Do not think that you can submit a compliant tender and then seek to step back from it in negotiations. If you tendered it, that is the baseline - be prepared to stick to it, though you may be asked to improve upon it.
Probity is not just an issue for your evaluators. Government takes probity very seriously. Do not attempt to do anything that could be construed as placing a government agency or its personnel in a position of conflict. Do not think, "they can always say no". Any possible, perceived or actual breach of probity may result in your tender being excluded immediately. Even if not excluded, a breach of probity will reflect poorly on your organisation. You should also be aware that, depending on the nature and severity of the probity breach, it may become public knowledge due to the government agency's disclosure obligations or questions in Parliament.
Pre-plan to the extent you can
You will often find that government agencies set out in advance the tenders that will be released and have on their website their standard contracts and policy documents. So before a request for tender, or other market testing document (RFT) is released, do your homework, read and understand the template documents and gather as much information as you can about the proposed RFT.
If you have any questions, contact the government agency. Whilst you may not be able to obtain any information that is not otherwise publicly available, there may be fewer restrictions on a government agency discussing an RFT or template document before release of the RFT than after release.
Try to match the skills of your drafters to that of the evaluators
If the RFT is for a low value and low risk task, then it may be suitable for your tender to be prepared by an appropriate commercial manager and it is likely that your tender will be evaluated by someone of similar experience. However, if the RFT is high value, complex or high risk, the government agency may engage internal or external lawyers to draft the RFT and evaluate your tender. In this case, it may be a mistake not to engage a lawyer or someone with legal experience to review your tender prior to submission. Again, a government lawyer may quickly identify any issue in your tender that would otherwise reflect poorly on your competence as an organisation and may impact on the value for money assessment.
A final word... or two
If there is one final tip, it is to infuse into your tender that you are on the side of the government agency. Be their friend, show that you understand their constraints and concerns, show that you will get on with the job and work with the government agency and, ultimately, that you will deliver a value for money solution with very low risk of failure or dispute.
And keep trying. Writing successful tenders is a skill that needs to be developed. If you fail and a debrief is offered - take up the offer and take the feedback seriously. Then try again.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.