Top 10 RFX drafting dangers

Paul Emanuelli is the general council of the Procurement Law Office.
Paul Emanuelli is the general council of the Procurement Law Office.

From the October 2016 print edition
Whether its 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 hindering your organization from reaching a higher level of RFX drafting speed and precision.
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: scoping statement; pricing structure; evaluation criteria; contract assembly strategy; and tendering format. A design flaw in any of these core elements will result in drafting delays and unclear content.
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 experience drafting gridlock with its project teams wasting valuable time making spot repairs to faulty templates instead of focusing on critical project details.
Unclear project scope: 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 must 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.
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.
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.
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 thinking this will give their evaluators greater flexibility. The hard truth is that hidden preferences expose the project to failed audits and costly bid protests.
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, which means your contract awards are vulnerable to judicial review.
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.
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 recycled bid, 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.
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 and integrate dispute resolution and termination procedures. Avoid overloading your solicitation with useless legal filler.
By avoiding these top ten RFX drafting pitfalls, project teams can better ensure a fine-tuned and efficient drafting process to get them to market with speed and precision.