Reading tender documents: get to the core in one hour

Which documents make up a public tender?

A Dutch tender almost always contains the same kinds of documents, although the names differ per buyer. The Dutch government’s business portal Ondernemersplein lists what you find in them: a description of the contract and the buyer, the type of procedure, requirements for the work, for your bid and for your company, and the award criteria. The Dutch terms are in brackets.

On top of that come annexes: declarations, a template for your method statement, drawings, data on the current contract. How to fill in the ESPD is covered in the ESPD.

In what order do you read the instructions to bidders?

Read first what can rule you out, then how you win, and only then the rest. The aim of the first hour is not to understand everything, but to know whether reading on makes sense. Work with the instructions to bidders open and look up the other documents when they refer to them. Note the page for every point.

1. 1Knock-outs (15 minutes)Exclusion grounds, selection criteria and hard requirements for your bid: turnover, references, certificates, insurance, mandatory declarations. A bid is only assessed if you meet the requirements. If you miss one, see whether you can challenge it or meet it together with another company; see selection criteria and knock-outs.
2. 2Award criteria and weighting (15 minutes)Which criteria there are, how much each weighs, how price is turned into points and how the panel scores. The buyer must state the weight of each criterion in the tender documents, unless it awards on price alone; if weighting is not possible for objective reasons, it lists the criteria in order of importance. According to PIANOo, the Dutch public procurement expertise centre, the full award model belongs there too, with the points and formulas. How to work that model through is covered in price and quality.
3. 3Deadlines (10 minutes)The last date for questions, the expected date of the clarification notice, the closing date, how long your bid must stay valid, the award and the start. Put them in your calendar straight away, with an internal deadline well before closing.
4. 4Format rules (10 minutes)Page limit per part, font size, mandatory templates, whether images and annexes count, how you submit and what must be signed. Format rules are easy to meet and easy to miss.
5. 5Contract risks (10 minutes)Scan the draft contract for liability, penalties, payment term, duration, termination and price adjustment. If there is no indexation, or one that is too tight, you are pricing with a number that will no longer hold in three years.

After that hour you have enough for a first decision. A knock-out you cannot meet and cannot get changed means stop. A weighting that suits your strengths and a contract you can carry means go on and read the specifications in full. How to make that call is covered in bid or no bid.

The first hour is not about the contract, but about whether you can win it.

Where do the contradictions hide?

Tender documents are often written by different people: procurement writes the instructions, the operational department the specifications, lawyers the contract. Where those documents meet is where things go wrong most often. The examples below are fictional, but the kind of error shows up in many tenders.

• Instructions and templateTwo page limitsThe instructions say ten pages at most for the method statement, the template in the annex says eight. Which one counts?
• Requirements and contractA requirement the contract makes heavierThe specifications ask for a response within four hours, the contract charges a penalty from two hours. Your bid promises one thing, your contract punishes another.
• Requirements and priceItems that do not matchThe specifications mention three locations, the price form has lines for two. Where do you price the third?
• TermsOne thing, three namesOne document says “office hours”, another “working days”, a third “the service windows”. Do they mean the same?

A handy test comes from a Dutch procurement law blog: can a sentence be read only one way, is information missing that you need, and does the text contradict itself or another document? If the answer to any of those is yes, you have a question for the clarification round.

What do you do when tender documents contradict each other?

Ask a question in the clarification round, before the deadline for questions stated in the documents. Do not quietly choose the reading that suits you best. If you fill in what the buyer meant yourself, you are guessing, and the risk is yours.

The yardstick is what a reasonably well-informed and normally diligent bidder should have understood from the documents. A requirement is read in the context of the other requirements, and more is expected of a bidder who knows the sector. If your competitor reads the requirement the way the buyer meant it and you do not, you are behind.

Do not wait either. Under the Grossmann case law, as Dutch courts apply it, you must raise unclear points in the documents as soon as possible and with reasons. Complaints you knew about before bidding can usually no longer be raised after a negative award decision. If the instructions set a final deadline for objections or for interim proceedings, take it seriously: in the case discussed by the Dutch law firm Dirkzwager, the court upheld such a deadline and the bidder was too late.

In a European tender in the Netherlands, the buyer must answer questions asked in time no later than ten days before closing, or four days in a procedure accelerated for urgency (article 2.54 of the Aanbestedingswet 2012, the Dutch Public Procurement Act). If the buyer cannot answer in time, or changes the documents significantly, it must extend the deadline for bids (article 2.73). How to ask a question so the answer actually helps you is covered in clarification questions.

Which document prevails in a contradiction?

That depends on what the documents themselves say. Look in the instructions to bidders and the draft contract for a clause on order of precedence, often under a heading like “leeswijzer” (reading guide), “rangorde” (order of precedence) or “tegenstrijdigheden” (contradictions). It says which document wins when two collide.

An example from a public model: in the 2017 bid document of Rijkswaterstaat, the Dutch roads and waterways agency, for design and construct contracts, the contract documents prevail over the bid document in a contradiction, and the clarification notices are part of those contract documents. For the timetable, the one on TenderNed, the Dutch tender platform, prevails over the one in the document. Other buyers arrange it differently, and sometimes there is nothing at all.

An order of precedence does not solve everything. It says which document wins, not whether the outcome works for you. And if there is no order of precedence, a question in the clarification round is the only way to get certainty.

A contradiction you do not ask about now becomes your problem later.

Read every clarification notice as a new document

All bidders see all questions and answers. An answer can soften a requirement, clarify a weighting or move a deadline, even when it was someone else’s question. After every notice, go through your notes from the first hour again: knock-outs, weighting, deadlines, format rules and contract. What changes, and what had you assumed that no longer holds?

Keep in mind how your bid will be read. According to PIANOo, the bid, including how you work out the award criteria, is binding on the bidder. What you write must therefore match the documents as they stand after the last notice.

Checklist for the first hour with the tender documents