By Bill Adams
Addressing exceptions in a set of purchasing specifications is a tedious task most purchasers give little thought to.
Exceptions are usually addressed in the boiler plate (aka front sheets) of purchasing specifications under the legalese and bidding requirements. Neither are particularly interesting subjects to most apparatus purchasing committee (APC) members. After all, what firefighter wants to address mundane verbiage describing an exception when stimulating job-related topics such as pump sizes, tank capacities, hose loads, and the number and type of sirens can be debated. In the majority of apparatus purchases, APCs readily adopt verbiage describing exceptions that is recommended by a favored vendor. That could be a mistake. There should be a common understanding by both the purchaser and potential bidders as to what an exception is and how exceptions will be addressed during the bidding process. Misunderstandings may result in discord and conflict. Prospective bidders may be unduly influenced in their decision to submit or not submit a proposal.
The dictionary defines an exception as an exclusion or an omission. Simply put: When a buyer specifies something in a purchasing specification and a bidder isn’t going to supply it, an exception must be taken by the bidder. Unfortunately in the fire truck world, it is not that simple. There are far too many variables. Purchasers and bidders may have their own interpretations of an exception. Some may be disingenuous.
There are two classifications of vendors in the competitive bidding arena. One is the preferred vendor who helps write or entirely writes the purchaser’s specification document. It also can be a vendor whose apparatus the purchaser is favoring in its specification. The other classification includes everyone else. There is no intent to disparage preferred vendors or question their integrity. It is logical and common for a preferred vendor to encourage purchasers to write “No Exceptions Allowed” in as many places as they can when the preferred vendor’s product is being described. The more exceptions competitors have to take in their proposals, the better the chances are for the favorite vendor to secure an order. Don’t blame the vendors; that’s their job. Purchasers should just be aware of it.
There also are two classifications of purchasers. The first includes purchasers who write proprietary specifications around an apparatus manufacturer (OEM) of choice—typically with the help of the previously mentioned preferred vendor. These people usually make nonpreferred bidders “jump through hoops” to justify taking any exception to their specifications. Some make liberal use of the phrase “No Exception” to discourage them. Whether favoring one vendor or discouraging others is ethical, morally correct, or even legal is not being debated. However, it does occur quite often. Purchasing the exact rig wanted is the wish of almost every purchasing committee member. It is utopia. Some purchasers may believe the end justifies the means.
The other classification of purchaser includes those who do not purposefully write proprietary specifications. They seek honest and open competitive bidding. Sometimes this group of purchasers inadvertently discourages competitive bidding by not adequately addressing exceptions. That can cause vendors to refrain from submitting a proposal, thereby unintentionally negating the objective of open competitive bidding.
The purchaser mandates what a bidder shall do when taking an exception. And, the purchaser always reserves the right to determine if a bidder’s reason for taking an exception is acceptable. Amazingly, some purchasers don’t ask why an exception has been taken to their specifications. Sometimes bidders will merely take an exception without offering an explanation or a substitute. Other times when bidders take an exception, they may propose something different than what the purchaser has specified. The purchaser has the final say on if it is equivalent to, better than, or acceptable to what was proposed. The purchaser signs the check and decides the acceptability of exceptions taken. There’s usually no recourse for bidders after the purchaser’s decision.
Purchasers should use discretion when writing “exception verbiage” in their documents—unless influencing nonpreferred vendors not to bid is their actual intent. Astute bidders justifiably attempt to decipher such a hidden meaning in the verbiage of a purchaser’s specification. A negative perception of exceptions can result in driving bidders away from the bid table. Making it difficult for them to justify taking an exception can have similar results. It is unfortunate if those hidden meanings and the difficulty to address exceptions are unintentional. It is inappropriate if the real intent of the purchaser is to make life difficult for nonfavored bidders. Although it regularly happens, purposefully discouraging bidders may not be ethically correct. In some political subdivisions, it is illegal. Perceptive vendors can easily decipher such hidden meanings.
“Valid” can be described as being legal and lawful. Using this definition in a political subdivision, a valid exception must meet the established parameters of established governmental bidding laws (i.e., state and local statutes). Essentially, an exception is legal or it isn’t. There’s not much latitude when complying with rules and regulations in competitive bidding environs. Purchasers should be aware of the procurement legalities within their own political subdivision. They should keep in mind that any decision made might be legally challenged.
Purchasers have the right and responsibility to write purchasing specifications that reflect the degree of design, engineering, workmanship, quality, and dependability desired in a piece of fire apparatus. When doing so, purchasing specifications may justifiably mandate features and methods of construction not available to all manufacturers. It is a fact of life that some OEMs build better fire trucks than others. This is a scenario where exceptions and their validity come into play. Purchasers may have a degree of wiggle room to accept or reject a bidder’s exception to the specifications. Bidders don’t have much say in it.
It is justifiable to mandate job-specific requirements to fulfill operational criteria in given response districts. Two examples could be specifying large water tanks for nonhydranted areas and motors with adequate horsepower to transverse extremely hilly terrain. In another example, a purchaser specifies a 100-foot aerial device because of the heights of certain buildings in a response district. A bidder proposing a 75-foot aerial device takes an exception to the aerial’s length. In my opinion, that is not a valid exception to the specifications because of compelling operational criteria.
Ambiguous definitions of a valid exception include when an exception is usable, acceptable, or authorized. As an example, a purchaser specifies a six-person cab, and a bidder proposes an eight-person cab. That could be a valid exception, providing operational characteristics such as overall length, wheelbase, and compartmentation are not compromised. Another example could be a purchaser seeking quick delivery on a prebuilt stock-type rig including one requirement: that the paint job is silver over red. Suppose a bidder proposes a rig with a white-over-red paint job that meets all the other requirements and is substantially lower in price. Would taking exception to the paint job be valid? In both these examples, the bidders probably believe the exceptions are valid. Will the purchaser?
Examples of purchasing specification verbiage found online follow. My comments are in brackets.
“EXCEPTIONS TO SPECIFICATIONS: The following specifications shall be strictly adhered to. Exceptions shall be allowed if they are equal to or superior to that as specified and providing they are listed and entirely explained on a separate page entitled ‘Exceptions to Specifications.’ The exceptions list shall refer to specification page number and paragraph.” [Who determines if an exception is “equal to” or “superior” to what was specified? How do you “entirely explain” something?]
“SPECIFICATION BID REQUIREMENTS: Bidders shall also indicate in the ‘yes/no’ column if their bid complies with each item (PARAGRAPH) specified. Exceptions shall be allowed if they are equal to or superior to that specified and provided they are listed and fully explained on a separate page. An exception to these requirements shall not be tolerated.” [This requirement is a variation of the preceding one illustrating a very common way of showing actually where and how bidders must take exceptions to a specification. Is “entirely explained” the same as “fully explained”?]
“Proposals taking total exception to specifications or total exception to certain parts of the specifications will not be acceptable.” [What does “total exception to certain parts” mean? The specification did not specify what the certain parts are.]
“If the bidder takes an exception, on the exception page, the bidder must state an option price to bring their specifications into full compliance with the department specifications.” [This statement does not make any sense. If the bidder can bring the proposal into full compliance now, he could have done so in the first place. The bidder may be nefariously using an exception to gain a financial advantage. I’d throw the bid out.]
The Real World
Almost every purchasing specification has the statement, “The Purchaser reserves the right to accept or reject any or all bids as it deems are in its best interests.” Similar statements addressing exceptions are often found. Many purchasers believe this is a catch-all phrase meaning they can purchase whatever they want—regardless of the specifications. That may apply to nonregulated entities such as independent volunteer fire companies. However, in political subdivisions, fire departments still have to meet the previously mentioned local bidding laws. Bidders who in the past have found their bids inappropriately disqualified in political subdivisions may start legally challenging indiscreet purchasers. Fire departments may have to justify their decisions to a nonfirematically oriented authority having jurisdiction. They might have to do it in a public forum. Do your homework.
Purchasers should be aware that some unscrupulous dealers may use “clarifications” and unsolicited “optional prices” and “alternate prices” to conceal where they should have really taken an exception to the specifications. (This will be covered in a future piece.) Consider using something similar to the following in purchasing specifications: “The Purchaser defines an ‘Exception to the Specifications’ as any difference or variance in what the Purchaser has specified and what the Bidder is proposing—no matter how slight, small, or insignificant it may be—regardless of the reason. Unsolicited alternate and optional prices shall not be considered.”
When considering exceptions, purchasers should be careful not to lessen the capabilities of or compromise the mission of their new apparatus. Bidders should not either. Saving money does not put out fires. Well-designed functional fire apparatus with well-trained firefighters do.
BILL ADAMS is a member of the Fire Apparatus & Emergency Equipment editorial advisory board, a former fire apparatus salesman, and a past chief of the East Rochester (NY) Fire Department. He has 50 years of experience in the volunteer fire service.