Apparatus Purchasing: Deceptive and Confusing Boilerplates

Many fire apparatus specification (spec) writers pay scant attention to a spec’s boilerplate-those pages of mundane nonfirematic-looking verbiage most macho firefighters consider unnecessary babble.

That’s a mistake. A spec’s boilerplate is just as important as the technical specifications. Usually located at the beginning of purchasing specs, they’re also known as the front sheets. Whether by deceit, design, or ignorance, front sheet verbiage can discreetly influence the competitive bidding process. Use caution-especially in highly regulated political subdivisions where the written word means what it says, attorneys reign, the rule of law prevails, and the fire department may be relegated to bystander status.

Influence

Usually a vendor helps the apparatus purchasing committee (APC) with most of a spec’s boilerplate. Although a questionable procedure, it occurs often. After the APC finalizes the specs, the authority having jurisdiction (AHJ) has its legal staff review the document to ensure governmental mandated requirements for public bidding are met. Often, legal beagles don’t know one end of a fire truck from the other. Most are only concerned with the literal law. Literal means being precise, exact, and word-for-word. When apparatus manufacturers’ (OEMs) bid estimators calculate the cost of a purchasing specification they do it the same way-literally. They only price what is written. To them, each line and each word has a value in both the technical nuts-and-bolts portion as well as the boilerplate portions of a specification. They do not read between the lines; they do not second guess; they don’t anticipate. It is not their job.

Other definitions of literal include being factual, truthful, and honest. And, not all purchasing specifications are literal in that respect. This is not an accusation; it is an insensitive but sometimes factually correct statement. In scenarios where a potential bidder helps write a purchaser’s specification, there’s a possibility that hidden meanings may have been slipped into the boilerplate. It is a common practice nobody wants to admit. The spec writer helper will claim ignorance because it has always accepted that the fire department “writes the specs.” Of their own volition, purchasers may also include or omit items in their boilerplates to discretely influence bidding. It’s another common practice that no one will admit-probably because it is illegal in many jurisdictions to knowingly give preference to or to disenfranchise potential bidders. Some purchasers feel immune from being held accountable. Most get away with it.

Before a rig is “factory priced,” the local dealer and perhaps an OEM’s regional or in-house sales manager will interpret the obvious and hidden meanings in the boilerplate and decide whether or not to bid. This is when bidding is influenced. Disenfranchised bidders will either vociferously complain or just let it go. The shoes may be reversed at the next bid.

Real-World Examples

Occasionally fire department spec writers make honest mistakes. What they really want may not be what they actually wrote. Bid estimators don’t know that. Some bureaucrats who enforce formal bidding rules and regulations may not care. Or, legally, they may not be able to address a mistake after the fact. In true competitive bidding, saying I think, I thought, I wished, and I meant to may not hold water. The following sentences were taken from the boilerplate in one municipality’s published purchasing specification. The comments after each are mine. The intent, reasoning, and justification of the spec writer are not being debated. The reality and ramification of his written words are.

It is required that each bidder produce both the chassis and complete apparatus. This sentence eliminates apparatus manufacturers (OEMs) that do not manufacture their own cabs and chassis. It limits the number of potential bidders to fewer than 10.

To eliminate divided responsibility and service, the chassis and body must be manufactured by the same company. The result is the same as above. However, there is another subtle message in it. As written, it is okay if the chassis and body are built in separate facilities as long as they’re owned by the same company. They could be a thousand miles apart. OEMs who build the chassis and the body in the same factory would end that statement with “… must be manufactured in the same facility.” That further narrows the field of eligible bidders.

Manufacturer shall state the number of years the company has been producing its own chassis and body. This sentence is irrelevant. There’s nothing in it that can be compared. There is no minimum requirement. An OEM that’s been building its own chassis and body for two weeks is as compliant as one that’s been in business for 100 years.

Bids shall only be considered from companies that have an established reputation in the field of fire apparatus construction and have been in business for a minimum of 10 years. This sentence has one requirement to evaluate for compliance. Bidders in business fewer than 10 years will be rejected. The part about established reputation is a waste of ink and paper. The expected reputation is not defined. A business with a reputation that is good, bad, or ugly will meet this requirement.

Further, the bidder shall maintain dedicated service facilities for the repair and service of products. Evidence of such a facility shall be included in the bidder’s proposal. This does not say the bidder or dealer must own a service center-just maintain one. Also, a bidder can have a service center 500 miles away and still meet the requirement. Additionally, one that’s in a barn with a dirt floor, wood stove, and no electricity meets it too-as long as the bidder “dedicates” it for service. The OEM can legally maintain it by paying the rent and keeping the stove stoked.

Each bidder shall furnish satisfactory evidence of its ability to construct the apparatus specified and shall state the location of the factory where the apparatus is to be built. If the purchaser does not define “satisfactory evidence,” it cannot compare bid responses. It can’t reject a manufacturer building rigs in a two-bay garage vs. one in a 100,000-square-foot modern facility. Stating the location is understandable. However, a bidder can’t be rejected if its factory is on the other side of the country because no minimum distance to the factory was specified.

The bidder shall also show that the company is in position to render prompt service and to furnish replacement parts for said apparatus. A well-used 1962 Pontiac coupe with a tool kit and three 2½-inch valve repair kits sitting on the rear seat meets this requirement.

The manufacturer shall have programs in place for training, proficiency testing, and performance for any staff involved with certifications. A one-sentence training program, a one-paragraph description of a test procedure, and another sentence describing performance criteria can be handwritten on a single piece of paper. I doubt that’s what a fire department expects.

In a regulated competitive bidding environment, a bidder is only legally obligated to comply with what is written in the purchasing specifications’ technical nuts-and-bolts portion and the boilerplate. The purchaser can only legally evaluate compliance with the written requirements. Whether the purchaser dislikes the reason a bidder complies, thinks another bidder’s answer is better, believes another bidder’s factory is closer, or one has a better equipped service center is immaterial. If a requirement is not in writing, it does not exist.

Some purchasers place a catch-all statement in their boilerplates stating something similar to the purchaser having the right to accept or reject any bid deemed to be in the best interests of the purchaser. It sounds good. Some purchasers believe it is a carte blanche we-can-do-whatever-we-want declaration absolving themselves of competitive bidding rules. Just remember it may be challenged in that place where the attorneys reign and the law prevails. This time the fire department might be further relegated to being a witness or, worse yet, a defendant. Write carefully, and read between the lines.

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.

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