Apparatus

Writing Apparatus Specifications: Boilerplate Pitfalls

Issue 11 and Volume 17.

Bill Adams

Every primer, presentation, and article pertaining to writing fire apparatus purchasing specifications (specs) emphasizes that the documents have to be clear, precise, and to the point. If the intent is to receive competitive bids, there should be no vagueness in the verbiage. Each potential bidder should know exactly and precisely what the purchaser is saying. When bidders interpret the document differently, it’s usually because of a lack of clarity. Bluntly speaking, if prospective bidders have to ask for clarifications, the purchaser didn’t do a very good job writing the specs. The clarity issue is generally directed at a spec’s technical portion, which describes the nuts and bolts of how to manufacture the rig and the parts and pieces included thereon.

There are two distinct parts of purchasing specs-the technical portion and a part known as the boilerplate. Purchasers should be aware that one is just as important as the other. On-the-line firefighters typically ignore the boilerplate, leaving it to those they sometimes mockingly refer to as the “civil side.” They may be making a big mistake. An apparatus purchasing committee should pay as much attention to the boilerplate as the technical requirements. If not, there can be far-reaching consequences.

A boilerplate can be defined as a unit of writing that can be used over and over-similar to a template. A template, a standard way of writing verbiage that can be copied, is often used to create legal documents. A purchasing specification is a legal document. In the apparatus world, the boilerplate consists of all those pages located ahead of the technical portion of the spec, also called the “front sheets.” Included are the legal requirements and formal bidding protocol required of and by the authority having jurisdiction (AHJ) or the political subdivision promulgating the document. The boilerplate contains the terms and conditions for bidders to follow, usually under headings such as “Instructions to Bidders,” “General Requirements,” and “Intent of the Specifications.” For some unknown reason, many consider the boilerplate sacrosanct. They assume it is correct and no one questions it. That also can be a mistake. The boilerplate from one rig’s specification is often incorporated into the specifications for the next rig. That may be problematic if the front sheets have not been updated in decades.

The Evaluation Process

To illustrate one facet of a boilerplate’s importance, examine the process of who evaluates the proposals received. In volunteer fire companies and smaller fire departments, the active firefighter side of the organization normally deals with the nuts and bolts. The executive or administrative side, previously referred to as the civil side and also known as the technocrats, evaluates boilerplate compliance. The civil side may pay more heed to the boilerplate than to the fire truck. In larger municipalities, a separate procurement department may evaluate all municipal bidding protocols. Taking exception to a general requirement or a portion of the instructions to bidders may be viewed as more detrimental than taking exception to a technical portion of the document.

Regardless of the severity of noncompliance, bids may be rejected because of such deviances. Technocrats may look at the boilerplate as “their” rules and regulations-and rules shouldn’t be broken. They may say, “After all, if the bidder will not follow our basic bidding instructions, how can we trust him to follow our technical requirements?” Not adhering to the boilerplate in its entirety may be a just and legal cause for rejection. Bear in mind that the only job of some civil servant locked away in a cubicle of a municipal purchasing department may be to ensure compliance with the front sheets. It may be irrelevant how slight, small, or insignificant the noncompliance is or whether the bid is for a fire truck or a folding chair. Good luck.

Types of Boilerplate

Whether by fate, ignorance, or design, the boilerplate may contain requirements, qualifications, and preconditions for bidders that can compromise the intent of competitive bidding. Although seldom admitted, the boilerplate can be written to favor a given manufacturer as well as to purposely disqualify one. Just as technical specifications can be categorized as open, generic, proprietary, and performance, so can the front sheets. Purchasers may want to use caution before eagerly adopting a preferred manufacturer’s recommended verbiage. Chances are it could be slanted favorably toward that manufacturer. Read it very carefully-especially when bidders are required to stipulate “yes” or “no” for their compliance to each item. Qualified bidders may be inadvertently disqualified from being considered. In some political subdivisions, it may be illegal to write a proprietary specification. It may be advisable to seek counsel to evaluate a vendor-suggested boilerplate.

Security

Most political subdivisions require sureties such as performance and bid bonds. A bond is a financial promise that a bidder will fulfill an agreement or a contract. A surety is a guarantee, by an insurance company, that bonding obligations will be satisfied. The value of bonds is not in question; they are imperative. The intent is to make apparatus purchasing committees aware that they may be stipulating security requirements that they might not understand; that may be overly restrictive; and, in some instances, that could possibly be illegal.

A common statement in the boilerplate is similar to: “The bidder’s bonding company shall have an A.M. Best rating of ‘A’ or better with a financial rating of at least ‘VII.’ ” What does an “A” rating mean? Is it exceptional, superior, excellent, or something else? And, who is A.M. Best? More importantly, why did you require those ratings in your specifications? If you adopted a favored vendor’s boilerplate without question, you may be treading on thin ice.

Best’s Web site states it is a private credit rating agency used to rate the creditworthiness of an insurance carrier’s financial strength, credit rating, and debt rating. The key here is that it is not rating the apparatus manufacturer. It is rating the insurance company that underwrites the manufacturer’s bonds. Best has 15 financial rating classifications grading whether an insurance company has “sufficient financial capacity” to meets its obligations. What is the difference between a VI, VII or VIII financial rating? Whoever wrote the specs should know. As previously mentioned, a purchasing specification-including the front sheets-is a legal document when published by a political subdivision. The fire department, as the specification writer, may be held accountable and its actions may be questioned. Because that could happen in a public forum, or worse yet in the media, spec writers should consider doing some “boilerplate homework” in case there is a challenge or a claim of bidding irregularity.

Financial Stability

Occasionally, the boilerplate will require additional proof of the apparatus manufacturer’s fiscal condition in the form of financial statements, a Dun & Bradstreet (D&B) credit report, and sometimes a specific D&B rating. Proceed with caution. Fire departments may again be specifying requirements they are unfamiliar with, may not know how to evaluate, and possibly have no legal right to request. A privately owned and successful apparatus manufacturer may not want to publicly reveal its private financial statements-especially if they can be scrutinized by its competition, which may unscrupulously use the information. That does not necessarily mean the manufacturer is financially unstable. It may be advisable to inquire what you can legally request. Also ask if you can legally reject a bid because the bidder does not provide a financial statement.

D&B is a private company that provides financial information on businesses. Its Web site states that its 5A to HH ratings reflect a company’s size based on net worth or equity as computed by D&B. These ratings are assigned to businesses that have voluntarily supplied current financial information as well as from financial data collected from a multitude of sources including other vendors and public records. If for valid business reasons a manufacturer declines to provide a credit rating organization with financial data, does that disqualify it from submitting a proposal?

If the recommendation of a preferred apparatus manufacturer’s boilerplate is to specify that all bidders must have a D&B rating of “1A,” for example, purchasers might do well to research what is being asked for. You could be embarrassed if you are asked if a 1A rating is better than a 4A rating. More embarrassing is having someone ask you why you chose the rating classification and how you are going to compare it with others you may receive. Bear in mind that when a purchaser specifies a condition or requirement, there must be a means to evaluate bidders’ responses to it.

Can potential bidders be required to do a certain dollar volume of business, have a certain number of employees, and exhibit particular payment habits to their suppliers? Some credit ratings are also based on those factors. You may inadvertently limit the number of potential bidders. Who determines the dollar amount when the boilerplate mandates specific coverage for the various types of insurance required of bidders? Bidding protocol and legalities may differ from one political subdivision to another. There are no reservations or qualms in determining a potential bidder’s financial stability. It is very important. Just know what you are asking for. Have your AHJ’s legal and financial gurus weigh in on the subject.

Sequential Bid Format

To potential bidders, one of the most aggravating and time-consuming requirements in the boilerplate is to require bidders to submit their specifications in the same sequence as the purchaser’s. It is especially exasperating when the purchaser uses a vendor’s proprietary specification as the purchasing document. It can take an extraordinarily large amount of time to edit and rearrange the text in a 150-page technical document-just to make it look like someone else’s. Although some purchasers make compelling and valid arguments that requiring so makes it easy for them to evaluate proposals, they should also realize it may influence bidders not to bid. There are other less time-consuming methods available to compare specifications. Ask those other bidders-they’ll know.

Verbiage

Boilerplate verbiage can be as confusing, misleading, and incomparable as the technical specifications. Deviations and exceptions to the boilerplate are seldom allowed. Consequently, simplicity is the key to writing an understandable document. When a requirement is written in the boilerplate, the purchaser expects the bidder to show compliance with a simple yes or no answer. Purchasers should write their requirements in equally simple verbiage. Purchasing should be a two-way street.

Specification writers are inherently defensive and do not like being challenged. However, at times they can and should be. If you don’t understand it, ask them what each sentence in their boilerplate means. It is neither fair nor realistic to expect a potential bidder to comply with a statement that no one can explain. If you can’t rationalize it, leave it out. Some examples of incomparable boilerplate verbiage are as follows:
• “Bids shall only be considered from companies that have an established reputation in the field of fire apparatus construction.” How do you evaluate, compare, and rate reputations? A company with a bad reputation will meet this requirement! If you will only accept a bid from a manufacturer who has built at least 100 rigs, for example, say so.
• Sometimes the above statement continues with “…and has been in business for a substantial period of time.” What constitutes a substantial period of time-a week, two decades, or 100 years? Substantial is not definitive. Leave it out.
• “The bidder shall show it is in a position to render prompt service and furnish replacement parts for said apparatus.” Define prompt service.
• “The design of the apparatus shall be in accordance with the best engineering practices.” What does best mean?
• “The workmanship shall be of the highest quality in its respective field.” Explain what “highest quality” means.
• “The apparatus shall be designed with due consideration to distribution of load between the front and rear axles.” What does due consideration mean? How can you determine if a potential bidder has designed the rig with it?
• “Construction shall be rugged, and ample safety factors shall be provided to carry the loads specified.” What vendor would be stupid enough to say it will build you a rig of mediocre construction with insufficient safety factors?
• A commonly found statement in the boilerplate is: “The apparatus, when fully equipped and loaded, shall have not less than 25 percent or more than 50 percent of the weight on the front axle, and not less than 50 percent or more than 75 percent on the rear axle.” Who came up with that requirement and where do you find it? Please share with our readers.
• “Each bidder shall furnish satisfactory evidence of its ability to construct the apparatus specified.” What constitutes satisfactory evidence-a photo of the factory, a list of users, or a note from the bidder’s mother?

Everyone knows the intent of the preceding statements. The problem is determining how and if each bidder can meet the intent-and prove it. Boilerplate requirements must be specific and reasonable as well as legal. Manufacturers, dealers, and purchasers are equally culpable in writing a boilerplate that can’t be defined, evaluated, or compared. It is challenging to define the financial stability of potential bidders. It’s just as hard as defining the quality, design, engineering, and workmanship expected in your new rig. Write smartly.

BILL ADAMS is a former fire apparatus salesman, a past chief, and an active member of the East Rochester (NY) Fire Department. He has more than 45 years of experience in the volunteer fire service.