Some notes on contractual content: what drives the requirement, what it looks like, and where your focus should be. RFP responses can seem complex and intimidating, especially to the uninitiated. Simplify the task by dividing and conquering.
Where Does the Requirement for Contractual Content Come From?
The short answer is: “The RFP.” But there are three underlying drivers:
- Legal requirements around contracting in the applicable jurisdiction
- Client due diligence requirements (e.g. environmental standards; employment standards)
- Client contracting norms and views on risk; that is, things that have gone wrong on earlier contracts can end up being codified in conditions that bidders must meet
What Kind of Contractual Content is Required?
Whatever it says in the RFP.
Clients usually include a draft contract in their RFP. Sometimes (more often at the draft RFP stage than at the final one) they invite bidders to identify any problems they have, any changes they want to make. Sometimes they require bidders to indicate their acceptance of its terms and conditions as given.
RFPs sometimes also include forms that bidders must complete and include with their proposals:
- A form that commits the bidder to the terms of their proposal (known as an “offer” in contracting circles) if the client decides to contract with them (known as “acceptance” in contracting circles, hence “offer and acceptance” in the legal sense)
- Other legally binding forms; for example, various certifications:
- That the bidder meets government requirements for equitable employment practices
- That the people being proposed to do the work will be available as promised
- That the people being proposed to do the work have the qualifications stated in their resumes submitted with the proposal
- That the bidder’s insurance company will issue insurance that satisfies RFP requirements if the bidder is successful
- And so on . . .
Are There Always Forms?
RFPs sometimes require responses or certifications of some sort, but don’t provide any form for bidders to complete. In that case, bidders must develop their own format.
So How Do You Know What to Submit?
You read the RFP carefully: the overview, the draft contract, the response instructions, and the evaluation criteria if provided.
Does it Require a Lawyer or Contracts Expert?
Not to identify the requirements: An intelligent lay reader can usually handle it. However, if the requirements are badly (i.e. confusedly) stated, an expert review might be needed, either from the perspective of interpreting legal language, or from the perspective of interpreting this client’s usual language and contracting framework. In either case, it’s prudent to ask for clarification from the client.
On the other hand, a lawyer or contracts expert should likely validate that the documents being proposed to be submitted actually meet the requirement.
Finally, it might be corporate policy or just good politics to have a contracts expert or in-house counsel (if such there be) brief senior executives on the requirements. Corporate executives taking signing responsibility for a bid are understandably reluctant to take just anyone’s word that everything is OK.