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As Clear as Mud - Why Taking a ‘Wait and See’ Approach to Vague Solicitation Requirements is Never a Good Strategy

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Procurement Bulletin

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 information[1].

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.

[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.


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