Unfortunately, not all contractors that submit bids in public procurement procedures in the broadly-defined IT industry properly analyze the provisions of draft contracts. Some probably assume that such an agreement is a non-negotiable template imposed by the contracting authority, with no modification possibilities. Others might be guided by the well-known (not only in public procurement) principle of “We will worry about that later.”
However, we would definitely encourage a thorough analysis of the future contract. This will allow you to submit a properly calculated bid and mitigate / get rid of many risks associated with the subsequent performance of the contract. We do not claim that you can eliminate all of them, but at least those that are crucial in the sector in which a given contractor operates.
We also strongly recommend open communication in both directions because the interests of the contracting authority and the contractor should coincide, at least when it comes to the efficient and adequate performance of a public contract. Needless to say, the Public Procurement Law does not provide for “business meetings” but at least makes it possible to arrange a meeting of contractors at the initiative of the contracting authority. Such a meeting, (in many cases more than one would be necessary) should not only serve as a ground for expressing one’s opinions and arguments but should instead act as a platform that allows the parties to develop a cooperation model that is effective and transparent, at the same time evenly distributing the parties’ rights and obligations.
In the first part of this article, we presented sample (and somewhat extreme, in our opinion) clauses that make some contractors decide against participating in a tender and submitting a bid despite the fact that the IT solutions they offer are innovative and virtually tailor-made for the contracting authority. Do such contractors have any tools to modify those clauses? From the formal point of view, they have several solutions to choose from.
A fairly common tool is “questions about Terms of Reference.” However, they may turn out to be useless if a contractor’s substantiated opinions and comments on the contractual provisions, sometimes with suggested changes or additions, are only met with a brief response from the contracting authority: (i) “as in the ToR”;, (ii) “we do not agree”, (iii) “the contracting authority will keep the provisions of the contract unchanged.”.
We perfectly understand that the responsibility for the organization of a public tender and for the use of public funds might be huge, but the lack of reaction or even some consideration on the comments made by contractors does not reduce this responsibility at all. We believe that, in fact, the responsibility gets even bigger. We are by no means saying that such behavior is the rule among contracting authorities. We could say that in a large part of public procurement processes, the contracting authority talks to the market and communicates with contractors in such a way as to clearly explain why certain solutions adopted by it (including contractual provisions) are necessary and right within the framework of a specific IT project. We would like to encourage all contracting authorities to engage in such communication because it will certainly help avoid many unnecessary discussions at the project implementation stage, including ones about early termination.
Having said that, we would like to promote the principle of even greater involvement and understanding of processes among both contracting authorities and contractors. The latter would definitely like to know the actual needs of their client (especially one with whom/which they have not worked before) prior to entering into a public contract.