Instructions, specifications and clarification questions: how to influence a public tender

Three documents, one whole

A tender comes as a stack of documents. Names differ from buyer to buyer, but you will nearly always find these three. The Dutch names are in brackets, as you will see them on TenderNed.

• RulesInstructions to bidders (aanbestedingsleidraad)How the procedure works: timetable, selection criteria, award criteria, format rules and how to ask questions.
• ContentSpecifications (programma van eisen)What you have to deliver. Requirements you must meet, and often wishes that earn you points.
• TermsDraft contract (conceptovereenkomst)What applies if you win: liability, penalties, payment and termination.

On top of that come annexes and forms. Halfway through the procedure, the buyer publishes the answers to all bidders’ questions in one document. In the Netherlands this is called the nota van inlichtingen. It becomes part of the tender documents, and the instructions often say it takes precedence over what was published earlier. Check this in the instructions themselves.

In which order should you read?

1. 1Start with the instructionsThat gives you the big picture first: what is being asked, how bids are scored and when everything has to happen.
2. 2Then read the specificationsHold every requirement against what your company can do and has. Mark what is unclear, what you cannot meet and what looks heavier than necessary.
3. 3Then read everything elseAll annexes and forms, right through to the draft contract. That is often where the surprises are.

The hard part is not the reading itself, it is connecting the dots. A requirement in the specifications that clashes with a clause in the contract. An award criterion asking for something an annex makes impossible. A deadline in the instructions that does not fit the timetable in the specifications. That is exactly where you find the questions that matter.

What most bidders do not realise

The documents are the buyer’s proposal. The clarification round is your chance to respond.

A requirement you cannot meet does not automatically mean you cannot take part. Ask yourself what the requirement is for, and whether you can reach that goal another way. If you can explain that well, buyers regularly adjust the requirement.

An example from practice, without names. A buyer asked for a specific certificate. A bidder explained in their question why that certificate was not needed for this contract, and how they achieved the same result another way. The buyer dropped the requirement. The result stayed the same, and the bidder could take part.

Do not leave it until you submit. Under Dutch law, you generally cannot replace a required certificate with something you consider equivalent unless you asked beforehand. The law only allows it if you cannot obtain the certificate in time through no fault of your own.

What makes a good question?

The second common mistake: asking the question, but too bluntly. The answer is short, and you are no further.

• Weak“Can the requirement for certificate X be dropped?”Answer: “No, the requirement stands.” You know nothing more than before.
• Strong“In section 3.2 you ask for certificate X. It ensures safety on site. We ensure that with our own working method, audited externally every year. Would you accept that as equivalent? More companies could then bid, with the same certainty for you.”Now the buyer has to respond on substance. Saying yes is easy, saying no needs a reason.

1. 1Be preciseName the document, the section and the page. A question nobody can trace gets a vague answer.
2. 2Explain why you are askingWhat is the problem, and for whom? A buyer who understands your reason will think along with you.
3. 3Offer an alternativeShow how the purpose of the requirement can be met another way. That stops “no, we will not change it” from being the easiest answer.
4. 4Show what the buyer gainsMore competition, lower cost, less risk. A change has to be worth it for them too.

Everyone reads along

The answers go to every bidder, including your competitors. A question can give away your approach or your advantage. Sometimes it is smarter not to ask, and to keep your solution for your bid.

It works the other way too. Other bidders’ questions tell you something: what competitors care about, what they struggle with, and often who is likely to bid. So read the clarification document for the questions as well as the answers.

When the answer disappoints

• Ask a follow-up questionIf there is a second round of questions, use it. Respond to the answer and sharpen your argument.
• A question outside the roundSometimes you can still send a question through TenderNed outside the fixed rounds. The buyer decides whether to answer. Only do it when it is really needed, and word it carefully.
• File a complaintPossible, but rarely wise if you want to bid yourself. Your relationship with the buyer then starts with a dispute.

One thing you do need to know. In the Netherlands, if you do not raise an objection to the documents in time, you usually cannot take it to court later. Judges call this the Grossmann rule, after a European court case. The instructions often state the deadline for objections. Do not let that date pass unnoticed.

The buyer has obligations too. In a European tender, questions asked in time must be answered no later than six days before the closing date. If that does not happen, or if the documents change significantly, the buyer has to extend the deadline.

Read the answers as if they were new documents

Because they are. An answer can change a requirement, clarify a criterion or move a deadline, for everyone. After each clarification document, go through your whole bid: what changes, and what have you already written that is no longer right?

Use the clarification round well, and you end up bidding for a tender that fits you better.