Tender documents should clarify, not confuse
The Insight
Tender documents are getting more complicated and not for good reason. Despite their purpose being to protect all parties involved, they are regularly the source of conflict.
As legally binding contracts, they must be detailed, understandable and unambiguous. When properly written, all parties involved have a clear understanding of what they will deliver, when, and for what cost.
Most importantly in contract writing, the contract itself should not be the reason there is conflict in the project.
A big issue with contracts is the indiscriminate use of templates. These templates are overwhelmed with information in an effort to cover all possible project structures and are often full of sections that are irrelevant, confusing or conflicting.
The client does not clearly articulate what they want to achieve and the tenderer does not understand the scope, both resulting in tender submissions that do not meet the objective of the project. More and more often, we are seeing tenders that are structured poorly, difficult to understand, and riddled with errors.
The Impact
Overly complicated tender documents increase project risk.
When a contract follows an irrelevant template, includes conflicting sections or is written in a confusing way, instead of protecting all parties, the contract becomes the source of conflict.
For example, the scope of works is a vital part of the tender that is often lost due to poor structure and contractual jargon. Too often, the scope of works is buried in the contract or broken up across multiple documents with each document named to suit a niche departmental acronym or numbering convention that does not make sense to anyone outside the organisation.
While it’s possible to decode each organisations’ tender documents, it is a waste of time and allows a contract to be open to misinterpretation.
A contract must be understandable and unambiguous. When a contract is difficult to understand, lawyers are essentially writing themselves into a job.
Tender writers need to step back from the detail in contract templates and consider whether the structure is suitable and clear. If a contract is onerous then the risk is enhanced.
Simplifying tenders is the easiest way to reduce the risk of misunderstanding.