Canada: As Clear As Mud - Why Taking A ‘Wait And See' Approach To Vague Solicitation Requirements Is Never A Good Strategy

Procurement Bulletin
Last Updated: September 27 2019
Article by Marcia Mills and Caroline Zechel

Bidders are always responsible for ensuring they understand the solicitation requirements and submitting a bid that responds to those requirements. The more precise and focused the bid, the better the chance of winning the contract.

Unclear or vague solicitation requirements do not shift this onus. The bidder's obligation remains solidly in place. Making assumptions as to what a requirement could mean, or what the procurement authority probably meant leaves room for error.

For each requirement, it is crucial to clearly understand what is being evaluated, how is it being evaluated, what the scoring methodology is and how the score will be determined. Be alert to requirements that are imprecise, or words that are not defined or that have several possible meanings. For example, a requirement that a product or service meet "industry standards" is a vague requirement; a requirement that a bidder have ISO 14001 certification is clear.

Bidders who decide to take a "wait and see" approach when faced with vague solicitation requirements run the risk of investing a lot of time, effort and resources in the process and getting nothing in return. Bidders who submit vague responses to requirements - either because they do not understand the requirement or are trying to disguise the fact that they do not meet the requirements - face the same risk.

Once final bids are submitted, bid errors (aside from minor administrative errors) cannot be fixed. Procurement authorities usually reserve a right to seek clarification from bidders with respect to their bids. However, it is important to keep in mind two points: the exercise of this right is discretionary and the "clarification process" is a limited-scope event, intended to address issues such as determining where information is located in a bid if it cannot be readily accessed. Procurement authorities are not required to seek clarification and even if they do seek clarification, bidders do not get to modify (repair) their bid or provide new information1.

Understanding these concepts is critical for success. Many a bidder has lost an opportunity because they failed to appreciate these obligations and limitations.

Determine How Clear (or Vague) the Requirements Are

The essential first step in any bidding scenario is to review the solicitation documents in full, paying attention to whether requirements are mandatory (and thus, non-negotiable) or non-mandatory, and whether the requirements are clear. The reviewers of the solicitation documents should be subject matter experts for the sections they are asked to review.

The drafting of requirements and the development of a bid in response to these requirements is a complicated process. Inadvertent errors that skew requirements or scoring methodologies can occur through no fault of the drafter. Inherent assumptions in requirements can lead to inherent assumptions in bid preparation. The subject matter experts on your bid preparation team should be able to determine, at a minimum, the six basic elements for each requirement: who, what, where, when, why and how.

When the bid preparation team is reviewing a solicitation document, be alert to comments such as "everyone knows what that means" or "it probably means this" or "It has to mean this because ...". These are signals that reviewers may be making inherent assumptions that what they think it means is also what the drafter of the requirement must have meant.

What is the Difference Between Mandatory and Non-Mandatory Requirements?

A mandatory requirement is a requirement that must be met in order for a bid to remain in the competition for a contract. Compliance with all the mandatory requirements of a solicitation is one of the cornerstones to maintaining the integrity of any procurement process. When selecting a winning bid, conformance with mandatory requirements will be thoroughly and strictly evaluated.

Procurement authorities will identify these requirements in the solicitation documents using words such as "must" or "shall", or identify that if a certain requirement is not met, the bid will be disqualified or will receive no further consideration.

A mandatory requirement requires a response confirming that the requirement is met, without exception. While the bid may permit a bidder to provide an explanation as to how they meet the mandatory requirement, at its most basic level a mandatory requirement is a "yes" or "no" proposition - the requirement is met or it is not.

Non-mandatory requirements are typically identified in the solicitation documents using words such as "may" or "should" or described as "optional" or "value-added" offerings. Bidders are asked to describe in detail how they meet a requirement, and, based upon the description provided, will be scored (the better the requirement is met, the greater the number of points that is awarded).

In any scenario where points are awarded, it is important to take note of requirements where a minimum number of points must be achieved (e.g., "minimum points to pass"). In these cases, the minimum points threshold operates as a mandatory requirement - failing to meet the point threshold can mean elimination from the competition.

Using the Q&A Process to your Benefit - Clarifying Unclear or Vague Requirements

As noted, bidders bear the responsibility to ensure they understand the requirements and submit a responsive bid. The opportunity to submit questions during the solicitation period is provided specifically to enable bidders to meet these obligations. Communication at this point is usually restricted to written submissions sent only to the procurement authority, to ensure the integrity of the solicitation process.

Identify what elements (who, what, where, when, why and how) are missing from the requirement. Identify what assumptions seem to be required to understand the requirement.

Questions and answers are usually shared with all bidders, so it is important to keep that in mind when submitting questions so as not to inadvertently disclose weaknesses or strategic advantages of your bid.

Submit questions as early as possible. If the answer received doesn't provide enough clarity (or leads to additional questions), this will leave time for follow-on questions, and ensures that adjustments to the final bid aren't being rushed through at the last minute.

Most procurements will have a final date for submitting questions, usually seven to 14 days before final bids must be submitted. Questions submitted after this date may not be answered.

Draft Solicitation Documents - To Review or Not to Review? That is not even a question ...

If draft solicitation documents are released in advance by a procurement authority, do not ignore them. The ability to review solicitation documents in advance provides an invaluable opportunity to gain an understanding of the requirements, to provide comments on the requirements to the procurement authority, to identify requirements that are unclear, and to determine if one should invest time, energy and resources to submit a bid.

During this period, procurement authorities are able to interact more openly with bidders and may even offer one-on-one sessions that enable bidders to seek clarifications on a confidential basis. This provides a great opportunity for open and frank discussions with the procurement authority, without risking disclosure of commercially sensitive information to competitors.

Draft solicitation documents should always be reviewed with the same degree of attention as is provided to any final solicitation documents. Engaging the subject matter experts who will be responsible for overseeing and preparing the final bid submissions is an important element of this initial review.

As noted earlier, once the formal solicitation process begins, bidders will be subject to the more limited Q&A processes and procedures when seeking clarification on the requirements. Achieving significant modification of the solicitation requirements is also much less likely.

Key Takeaways

Vague solicitation requirements can leave bidders navigating in murky waters.

While mere irregularities in a bid should not result in disqualification of a bid that otherwise complies with all material conditions of a solicitation, a bid that does not clearly respond to the solicitation requirements will usually be disqualified if the requirement is a mandatory requirement or receive a very low score if the requirement is a point-rated requirement.

Because bidders remain responsible for ensuring they understand the solicitation requirements and submit a responsive bid, failing to seek clarification during the solicitation process can impact the success of a future bid protest by an unsuccessful bidder.

To ensure smooth sailing, bidders must be proactive and take advantage of all opportunities that permit them to clarify and fully understand requirements. The preparation and submission of clarification questions is an art as well as a science, and is an integral part of any successful procurement strategy. Working with a legal team that has knowledge and experience in this area and that can assist with strategic planning and approach from start to finish, is critical to success.

Footnote

[1] There may be occasions where the bid scenario is structured so as to permit a more flexible clarification process, such as a phased bid evaluation process or where a procurement authority has included a "privilege clause". We will discuss these situations in future bulletins.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions