THE ESSENTIAL TEAM MEMBER

Before bidding on a tender, you need to organise your tender team, including your bid writer, operational experts, CFO or accounts person, perhaps your commercial manager and, last but not least, your legal adviser … the Tender Lawyer.

Tender Review and Advice

As soon as you obtain the tender documents, email them as a package to the Tender Lawyer. It’s important that the Tender Lawyer is given the opportunity to review all of the tender documents, including the RFT, the Conditions of Tender, the Scope of Works/Technical Specifications, Pricing Schedule, draft Contract and any annexures or schedules. Although the Tender Lawyer’s focus will be on the draft contract and the conditions of tender, the other documents (particularly the scope of works) provide important context to assist the Tender Lawyer in providing practical and meaningful advice. In your email instructions to the Tender Lawyer it’s also helpful to provide any other background information that you think might be useful to the Tender Lawyer in reviewing the documents.

The Tender Lawyer will review the documents and contact you by email or phone for any clarifications. You will then receive a concise advice by email, written in plain English, that:

1. Summarises key terms of the contract, laid out under subject-matter headings;
2. Highlights any unusual clauses;
3. Analyses the significant legal risks and provides recommendations for addressing them.

The Tender Lawyer will assume that you understand the basics of a contract and will not address every single clause in the contract in detail. As the Tender Lawyer becomes more familiar with your business, the advice will take into account your company’s risk appetite. The Tender Lawyer understands that business is about taking risks within acceptable limits – there’s no reward without risk. Nearly all risks can be acceptable if the price is right. The Tender Lawyer will point out the risks and suggest what can be done to mitigate those risks, but at the end of the day, it’s for you to decide whether or not those risks are acceptable and to price them accordingly.

Contract Departures, Exceptions and Clarifications

As an additional service, the Tender Lawyer can also draft contract departures/exceptions using either the template contained in the tender package or, if none is provided, using the Tender Lawyer’s own template. If the RFT requires you to provide your departures in the form of a marked-up amended contract, the Tender Lawyer can do this for you, so long as you provide an editable (i.e. Word) version of the contract. If you have requested in your initial instructions that the Tender Lawyer also draft the departures, the draft departures will be attached to the initial email advice. Between the initial drafting of the departures and the final tender submission there are sometimes some changes that need to be made to the draft departures and the Tender Lawyer is happy to work with you to finalise the departures.

Contract Negotiations

If your company is successful in its tender or is shortlisted for the tender, you may have the opportunity to negotiate the terms of the contract, based on the departures that you have submitted. The Tender Lawyer can assist you in the contract negotiation process, either by advising you on each step or negotiating on your behalf with the principal or its lawyer.

Pre-Execution Contract Check and Sign-off

It’s important to get the Tender Lawyer to check any contract just before it’s signed by your Director or General Manager, even if the Tender Lawyer has reviewed the initial contract at the tender stage. This is because the final contract can sometimes be different to the version of the contract that was reviewed at the tender stage. Also, it’s important to make sure that all agreed departures have been incorporated into the final version of the contract.

Invoicing

Unless you require more regular invoices, the Tender Lawyer will email an invoice to you at the end of each month for work done during that month. While the Tender Lawyer prefers to include all matters worked on during that month in a single consolidated invoice (listing time spent per matter), it is possible to get a separate invoice for each matter at the end of each month.