This week’s blog is from guest author Shlomo D. Katz, Counsel in international law firm, Brown Rudnick LLP.
Several years ago, a proposal industry group asked me to contribute a legal column to its upcoming newsletter.
The theme: “Solutioning!” I work around proposals and contracts all day long, but I had never heard of “Solutioning.” I looked it up. This is what I found in one online dictionary:
“Solutioning: A word many business people misuse to describe the process of creating a solution. These people need a grammar lesson and should be fired immediately.”
Yes, that last sentence was part of the definition.
The everyday meaning of words applies
That got me thinking about how we use words, especially in proposals and proposal writing. A proposal is an offer to enter into a contract and its meaning depends on contract interpretation rules. The most basic contract interpretation rule is that words carry their plain, everyday meaning. This is unless there is a clear indication that the writer intended a different meaning. So, the word choices you make may impact whether you win the contract. They also will determine what your contractual obligations will be once you do win. And whether your company will make a profit or lose money.
Sometimes, a writer will use a word as a term of art. Or the word might have a specific technical meaning. This may be obvious from the context. For example, a computer scientist uses the term “Git”. He probably is referring to “a distributed revision control and source code management system with an emphasis on speed”. This is rather than referring to “an unpleasant or contemptible person.” If you intend a word in your proposal to have some other meaning than what the reader would expect, you’d better say so.
The frustration of misunderstood proposals
Many disappointed offerors know the frustration of learning that the agency misunderstood their proposals. Usually, that’ll be tough luck. The Government Accountability Office (GAO) has said many times that it’s the offeror’s responsibility to submit a proposal that responds to, and demonstrates a clear understanding of, the solicitation requirements. Where a proposal fails to do so, the offeror runs the risk that the procuring agency will evaluate the proposal unfavorably.
The same applies to a proposal that’s ambiguous. A very recent GAO bid protest decision excerpt illustrates this:
|Here, the RFQ defined the minimum standard of acceptability in terms
of a vendor “supplying the Gigamon part number (SKU) GPS–GOS–RSE”
in its quotation. RFQ at 154. We disagree with Oready’s characterization
of its quotation as having “explicitly” offered to supply the part number.
In our view, it was unclear whether Oready was proposing to provide
the actual Gigamon part number or merely a service that would provide
similar, but not identical, attributes. Faced with an ambiguity as to what
the protester was proposing to furnish (and thus an ambiguity as to
whether it was proposing to furnish a service meeting the requirements
of the RFQ), we think the agency’s rejection of Oready’s quotation was reasonable.[i]
Granted, I have not reviewed the entire record of that protest and don’t know the whole story. Still, it’s hard to understand why an offeror would fail to say straight-out: “We will supply the Gigamon part number (SKU) GPS–GOS–RSE.” Unless, of course, the offeror didn’t understand the requirement or wasn’t planning to supply the required part. The lesson is: Make sure your words unambiguously show your intention to comply.
A recipe for disputes during contract performance
Winning based on an ambiguous or incomplete proposal is a recipe for disputes during contract performance. The Government will think that you promised to deliver one solution. You might have intended a different, probably less costly, solution. Or, you might have intended your promise to be conditional. But the Government doesn’t know that, because you haven’t said so in plain language. Some examples:
- “We will complete installation of the system by January 1, 2021.” You’d better be finished by that date. If your offer is conditional, say so. As in “We will complete installation of the system by January 1, 2021. This is if the Government provides the Government-furnished servers listed in Attachment A by December 1, 2020.” (Same idea in another context: “We will tear down the building by January 1, 2021. That is if the Government vacates the building and removes all of its property by December 1, 2020.”)
- Be clear about what you are including, for instance, “The price includes the following components: . . .” Even better is: “The following components are required for system operation but are not included in this proposal: . . .”. We are all familiar with: “Batteries not included.”
- Do not say: “The following components will be provided by others: . . .” That leaves the reader wondering. Are you promising that someone else will provide those components? Are they included in your price and schedule?
A dispute about the meaning of your contract has two nasty consequences:
- Your company will spend its hard-earned profits preparing claims and litigating disputes. Instead of returning them to the shareholders (or to you, in the form of a bonus).
- You will be fighting with your customer–never the ideal situation.
So use words that make it clear what you are offering. You can use words that are ambiguous in the context of your proposal or industry. Just make sure you define them.
Now, get out there and start “solutioning.” But, do it in words that make clear to the customer what you mean.
Shlomo D. Katz is Counsel in the Washington, DC office of the international law firm of Brown Rudnick LLP. Shlomo specializes in all aspects of Government contracting. If you have any questions about the topic of this article or other proposal or contracting issues, please contact Shlomo at 202.536-1753 or email@example.com. You can find more information and other articles Shlomo has written at http://www.brownrudnick.com/people/shlomo-d-katz/.
[i] Matter of: Oready, LLC-Costs, B- 418297.2, 2020 WL 1686332, March 30, 2020.