In virtually all public sector procurements – and an increasing number of private sector tender processes as well – bidders are given the chance to ask clarification questions. In most cases this replaces more free-form communications whilst the bid process is ongoing, especially in the public sector – even with your best contacts, when the bid is on, the shutters tend to come down.
Most bidders are used to asking questions to help them understand the bid documents (and anyone on the procurement side should take it as a sign their documents are badly written if they’re being bombarded with clarification questions) – but most organisations stop there, not realising that clarification questions can be an extremely powerful weapon in their bidding armoury.
There are actually three different types of clarification question, with three different aims: to inform, to influence and to intimidate.
Read on to find out how to make the most of these different types to gain an edge over your competitors.
This is the type of clarification question most bidders are very familiar with – used where they actually do want to inform themselves on something about the bid.
But even here, there are ways to get ahead of the game.
Firstly, identify your questions early. Too many times, I have been supporting or even involved in bids where clarification questions were raised too late – either after a lot of wasted work had been done because of a false assumption or, worse, after the deadline for raising questions had passed.
By getting in early, not only do you avoid these pitfalls, you also:
Give yourselves time to properly craft the questions – more on this below.
Take control of the narrative – often, procurement teams will receive a question on one topic, answer it, then refer back to (or copy and paste) that answer whenever another question on that topic comes in, even if that later question is actually asking about something subtly (or completely) different. By getting in early, you help to ensure that your questions don’t fall victim to this.
Secondly, remember that every contact is an opportunity to do some selling. Some people will tell you that it’s too late to influence people by this stage and that if you don’t already have nicely warmed-up contacts in the customer, you probably shouldn’t even be bidding. I say: nonsense.
Even if we accept that, if true, this completely undermines procurement law (where that applies), the fact remains that however good your contacts are, they probably don’t cover everyone in the customer’s procurement team, so why would you miss a chance, however small, to influence someone else in the buying process (in this case, the person reading your clarification question)? Even if you had already pre-sold to everyone possible, why would you pass up the opportunity to reinforce your messages, and possibly play in some new ones?
So, for example, instead of a clarification question reading: “Do you need the helpline function to be available 24/7?” it could say: “We have considerable experience of providing 24/7 helpline functions to customers like you – is this something you would value?”
Thirdly, for public sector bids in particular (although this also applies to some private sector procurements), remember that the default position is for your questions and their answers to be shared with all bidders. Only if your question reveals something commercially confidential about you or your proposed offering would the response be kept private, between you and the customer.
In some cases, this will be a headline concern – for example, where you’re asking whether it would be appropriate to service the contract out of your location at X (which, if disclosed to your competitors, would help them to know that you have a particular strength or weakness which they could then address in their own bids). Where this applies, it’s simply a question of making sure you clearly mark the question as commercially sensitive (or whatever term the customer is using), usually supplying a brief supporting explanation.
However, in other cases, this is not a true worry, but it would be quite nice to keep an edge by being the only bidder to know the answer to your question. Where this applies, it is perfectly legitimate to try to include in your clarification question something commercially sensitive which is relevant – but not necessarily essential – to the question. This would then enable you to at least attempt to argue that both the question and its answer should be treated as commercially sensitive and revealed only to you. Having worked often on the customer side, I can tell you that many procurement teams are both slightly paranoid about getting this side of things wrong (by divulging commercially sensitive stuff) and, often, under-resourced to properly deal with clarification questions – so any assertion that something is commercially sensitive is, so long as it is at least superficially plausible, likely to be accepted.
Finally, don’t be afraid to ask. How many times have you been sat in a bid meeting trying to work out if the customer does or doesn’t want a particular feature? Why would you keep wasting so much time and effort on second-guessing, taking the risk that you’ll guess wrong? The main thing which seems to hold people back is fear of asking a stupid question. Yes, you do need to be conscious of that, but if an internal discussion doesn’t quickly throw up an answer that you can be confident in, then either it’s a sensible question to ask or, quite frankly, it might be stupid but that’s a sign you shouldn’t be bidding, because you don’t know the customer or the market well enough.
It’s worth remembering that customers want a viable competition and, more importantly, they want what they want – by which I mean that it’s also in their interests to have a range of bidders who all fully understand what the customer is truly after, rather than submitting a load of well-considered, competitive and beautiful bids, none of which actually deliver what’s needed. So they’re motivated to help you understand their requirements, and not leave you guessing.
This type of clarification question is for where you’re not really trying to find things out; instead, you’re trying to move the customer around to a particular position. If you like, it’s a way of negotiating or of making the ground more fertile for your particular proposal, but during the bid phase itself. It’s especially useful when all other routes of communication have been closed down to you because the customer has gone into bid mode.
One real-life example from my law firm days: my client was bidding to provide services into a staff benefits scheme for a local authority customer. The customer was stipulating, in the bid documents, that all employee information had to be held and processed in the UK. This was a problem for my client, whose data centre had been off-shored to the US. By using a combination of data protection legal stuff and some not-too-subtle threats around the customer’s position being in breach of applicable procurement law, we were able to get the customer to change their position, enabling my client to submit a compliant bid.
The structure of the clarification question went something like: “Bearing in mind [clever stuff about data protection law], it appears to us highly likely that section [x] of the ITT risks being in breach of [boring procurement law references] – with that in mind, could the authority please clarify whether or not the requirement at section [x] should be construed so as to allow [what we want]?
A slightly more subtle version is where there is genuine ambiguity in the bid documents, but one interpretation would favour you more than another. In this case, what you’re asking is really a mixture of an “Inform” question and an “Influence” one, but the structure is similar to the example above: “Bearing in mind that [insert all sorts of wonderful benefits to the customer if your favoured interpretation is correct / terrible downsides if it’s not], please would you confirm that section [x] of the bid documents should be interpreted [in the way we want]?
You do, of course, have to be careful using this type of question and use it sparingly, when it will really make a difference. If customers feel they are being pushed around or manipulated too blatantly, they are likely to react badly – but, so long as the language is kept suitably polite and there really are upsides to gain / downsides to avoid for the customer which you are highlighting, then the risks to you will usually be minimal.
This type of clarification question depends on all questions and answers raised (except commercially sensitive ones) being shared with all bidders – it’s therefore not always available on every bid, but where it does apply it can be really powerful.
It’s used where you already know the answer to the question you’re asking, but you want your competitors to have that answer brought to their attention so that they change their bid behaviours (for example, making sure they price in a particular risk, or even scaring them off entirely).
A classic example is some work I did a few years ago for a national charity which was bidding to take over some services from a council in London. We knew that many of the competitors were some very worthy and well-intentioned – but very small and under-resourced – micro-charities and tiny non-profit groups. We also knew that the successful bidder would, because of TUPE law, inherit a load of council employees with local government pensions which the successful bidder would then have to continue to provide (a complicated and often expensive process which my friend Comron Rowe at Temple Bright would be happy to tell you more about!).
The burden of these pension requirements would almost certainly send the small organisations under – very bad news for them and for the people they are supporting. So my national charity client (which, of course, did also want to win the bid – although that wasn’t its only motivation) submitted a clarification question aimed at drawing attention to the size of the pensions liability which any successful bidder would have to take on.
The council duly answered the question, which in turn scared off all the smaller bidders who read it (some didn’t keep an eye on clarification responses and probably still don’t realise what a lucky escape they had – there’s a lesson in there for us all). The result? Playing field successfully cleared for my client.
Not all uses of this type of clarification question are necessarily as extreme – for example, I’ve worked with a defence contractor which wanted to flag that only it had the necessary intellectual property rights to deliver part of the contract, so it submitted a clarification question aimed at getting the customer to confirm that the successful bidder would have to liaise with that defence contractor to get access to those IPRs. The overarching aim was to ensure that the other bidders included something extra in their prices (to cover their costs of having to buy in the IPRs), making them less competitive.
“Judge a man by his questions, rather than his answers.” – Voltaire
So there you have it – a practical guide to weaponising clarification questions to help you win bids. If you’ve successfully used clarification questions in other ways, we’d love to hear about it.
Good luck and happy bidding!
©2018 Candid Commercial Limited
If you’re bidding for something and want some support with identifying or crafting some more sophisticated clarification questions to give you an edge, we’d be delighted to help – please drop us a line.