“God is silent and the world revolves around him” — bid­ding strate­gies in the pro­cure­ment process*

Did you rec­og­nize it? The quote comes from Got­tfried Keller’s Green Hen­ry. But how do we get from the Swiss Goethe to a — some­what pompous — “bid­ding strat­e­gy”?

Absence makes …

Bid­ders in award pro­ce­dures decide not only on their bid, but also on their behav­ior before sub­mit­ting the bid. A some­times unin­formed, some­times tac­ti­cal­ly moti­vat­ed approach is to ask ques­tions. One or two bid­ders even show­er the con­tract­ing author­i­ty with ques­tions, com­ments and instruc­tions. Fig­u­ra­tive­ly speak­ing, he announces him­self loud­ly, stands puff­ing in the mid­dle of the room and waves his arms. Here, the sales strat­e­gy of show­ing pres­ence is extend­ed into the bid­ding process. Such bid­ders are pre­cise­ly not silent. They are not gods, but approach­able peo­ple of flesh and blood.

… the heart grow fonder.

It’s dif­fer­ent for bid­ders who come out of nowhere. Regard­less of whether they were pre­vi­ous­ly invit­ed or bid in response to a pub­lic announce­ment, whether their par­tic­i­pa­tion in the pro­ce­dure was fore­see­able for oth­er rea­sons or comes as a com­plete sur­prise: their first word is the bid, whether it is indica­tive or final. They speak — only — through their offer.

Beyond the say­ings

But what are the most tan­gi­ble advan­tages that these silent gods can claim? It depends above all on the pro­ce­dure, the indus­try and the appli­cant envi­ron­ment.

Pub­lic pro­cure­ment pro­ce­dures

In pub­lic pro­cure­ment pro­ce­dures, bid­der ques­tions are to be anonymized and — like the answers — com­mu­ni­cat­ed to all inter­est­ed par­ties. But this ten­den­cy can also be observed in the pur­chas­ing of pri­vate com­pa­nies, which is becom­ing more and more for­mal­ized. The ques­tion­er there­fore nev­er works only in his own inter­est. He uncov­ers ambi­gu­i­ties and gaps in the ser­vice descrip­tion — for the ben­e­fit of all inter­est­ed par­ties. He destroys sup­ple­men­tary or change request poten­tial — to the detri­ment of his com­pa­ny. Under cer­tain cir­cum­stances, his ques­tions reveal con­sid­er­able spe­cial knowl­edge or sim­ply pecu­liar­i­ties of his com­pa­ny — and the com­pe­ti­tion already knows who is involved. The silent god can only remain silent about this. We do not see him, we know noth­ing about him. He does not betray him­self, he does not com­mu­ni­cate any­thing to us.

Out­siders strat­e­gy

For out­siders seek­ing to enter the mar­ket, it may be advis­able to remain silent. If nei­ther the incum­bents nor the con­tract­ing author­i­ty have the out­sider on their radar, but the spec­i­fi­ca­tions of the RFP are met, “bid­ding out of the blue” can be an effec­tive tool. The bid­ding envi­ron­ment has not received any warn­ing sig­nals; it is not adjust­ing to any­thing spe­cial, espe­cial­ly in terms of price.

Mar­ket lead­er­ship strat­e­gy

Even for the mar­ket leader it may be appro­pri­ate to remain silent. In the best case (for him), he has act­ed true to the mot­to “The con­tract is won before it is award­ed”, not through ille­gal influ­ence or pre­emp­tion, but by way of legal mar­ket cul­ti­va­tion and mar­ket pen­e­tra­tion. In that case, how­ev­er, he no longer has to flush any­one out by ask­ing ques­tions.

Con­clu­sion

Play­ing God in silence does­n’t always work, and it does­n’t always make sense. But every bid­der should know this pos­si­bil­i­ty and check it for him­self in each indi­vid­ual case.

*This legal tip is no sub­sti­tute for legal advice in indi­vid­ual cas­es. By its very nature, it is incom­plete, it does not relate to your case, and it also rep­re­sents a snap­shot, as the legal basis and case law change over time. It can­not and does not cov­er all con­ceiv­able con­stel­la­tions, serves main­te­nance and ini­tial ori­en­ta­tion pur­pos­es and is intend­ed to moti­vate you to clar­i­fy legal issues at an ear­ly stage, but not to dis­cour­age you from doing so.