Writing Stellar SpecificationsUtah State Procurement OfficeDecember 8, 2014

Maggie McConnellAssistant General CounselMaricopa Community Colleges

Objectives of this Session• A look at statutory authority

• General writing tips

• Specific issues relating to certain types of specifications and scopes of work

Big Picture View

As state and local governments purchase increasingly complicated systems, there is a growing body of work developing on how organizational structures need to be built and roles assigned to support, among other things, the development of specifications, scopes of work, and solicitations for these types of systems.

See as an example: Recommendations To Improve LargeInformation Technology Procurements: A Road Map For Success In California, Task Force on Reengineering IT Procurement for Success, August 2013, available at:http://www.sco.ca.gov/Files-EO/0813_IT_Task_Force_Recommendations.pdf

Big Picture View

• Historically, writing specifications and scopes of work has been one part of the entire contracting process. Today, it is even more important to integrate the writing of them into the contracting process, and for the procurement officer and the user to work together from the start.• The State of Texas Contract Management Guide identifies

that entire process of which the drafting is part as:• Planning• Procurement• Contract Formation• Contract Oversight

Big Picture View

• That Contract Management Guide is a useful document, providing good clear guidance on the key steps under each of those headings. See: http://www.window.state.tx.us/procurement/pub/contractguide/contract-mgmt-guide-v1.12.pdf

• If state procurement officials aren’t invited into the planning process, the procurement official should ask the user once he or she initiates the procurement for all planning information related to the procurement request.

Why is Precision Important?

Hook

Why is Precision Important

Hook

Good Writing is Essential

Which is easier to read and understand for the purchase of toilet paper?

• The TP shall be FB 2 ply with SS APX 4” x 4” to fit SSD, with 500 SPR, and 9 RPC. DLVY shall be to the SPO.

• The Toilet Paper shall be fully bleached 2-ply with sheet size approximately 4” x 4” to fit standard sized dispensers, with 500 sheets per roll, and 9 rolls per case. Delivery shall be to the State Procurement Office.

• The Toilet Paper shall be fully bleached 2-ply with sheet size approx. 4” x 4” to fit standard sized dispensers, with 500 sheets/roll, and 9 rolls/case. Delivery shall be to the SPO.

Good Writing is Essential

Which is easiest to read and understand for the task of emptying trash cans?

• All 10 gallon, 30” high trash receptacles shall be emptied into the buildings 4 cubic yard metal container at least 5 times a week at approximately 10AM sharp. Replace all liners with quality, extra thick, black, low density polyethylene, 24”Wx30”L, 1mil gauge plastic liners. Contractor shall furnish all labor, equipment ( g ) pp y p including liners) and supplies necessary to perform services.

• Empty trash cans into the building’s refuse bin 5 times a week. Replace receptacle liner when the existing bag is leaking, torn, or unsanitary. Contractor shall furnish all labor, equipment (including but is not limited to: cleaner, disinfectant, bags) and supplies necessary to perform services.

Benefits of Good Writing

• Well-written specifications and scopes of work need to thoroughly inform the bidders or offerors about the government’s needs so that they can actually produce the product or service that fits the needs.• They also encourage broad competition, which is positive

because:• It means that they are more likely to be fair and balanced; and• Vibrant competition is good for the local economy and public

procurement plays a big role economically.

• Clear writing helps establish unambiguous benchmarks in the contract.

Utah Procurement Code Definition63G-6a-103. Definitions“Specification” means any description of the physical or functional characteristics, or nature of a procurement item included in an invitation for bids or a request for proposals or otherwise specified or agreed to by a procurement unit, including a description of

(a) a requirement for inspecting or testing a procurement item; or

(b) preparing a procurement item for delivery.

Definitions Used in This Session• Specification = any description of the physical or

functional characteristics, or of the nature of a supply, service, or construction. It may include a description of any requirement for inspecting, testing, or preparing a supply, service or construction item for delivery. • Scope of Work or Statement of Work = a description of

the requirements of services to be performed. The scope of work may include material requirements to perform the needed services.

Utah Rules on Specifications

R33-4-103. Specifications(1) Public entities shall include in solicitation documents specifications for the procurement item(s).(2) Specifications shall be drafted with the objective of clearly describing the procurement unit's requirements and encouraging competition.

(a) Specifications shall emphasize the functional or performance criteria necessary to meet the needs of the procurement unit.

Who Writes Specifications or Statements of Work?• For a procurement officer at the central office:• The procurement officer, with user input; or• The using agency, with procurement officer review

• For a procurement officer at an agency with direct or delegated procurement authority:• The procurement officer, with user input; or• The user, with procurement officer review

• Sometimes, outside technical experts are used to assist with complicated procurements.

Who Has Authority over Specifications and SOWs?63G-6a-303. Duties and Authority of Chief Procurement Officer(1) Except as otherwise specifically provided in this chapter, the chief procurement officer serves as the central procurement officer of the state and shall:

(g) if the chief procurement officer determines that a procurement over which the chief procurement officer has authority is out of compliance with this chapter or board rules

(i) correct or amend the procurement to bring it into compliance; or

(ii) cancel the procurement if:(A) it is not feasible to bring the procurement into

compliance; or(B) the chief procurement officer determines that it is

in the best interest of the state to cancel the procurement. . . .

Who Has Authority over Specifications and SOWs?

63G-6A-305 Duty of the Chief Procurement Officer in Maintaining Specifications(1) The chief procurement officer may prepare, issue, revise, maintain, and monitor the use of specifications for each procurement over which the chief procurement officer has authority.(2) The chief procurement officer shall obtain expert advice and assistance from personnel of procurement units in the development of specifications and may delegate in writing to a procurement unit the authority to prepare and utilize its own specifications.

What Does That Mean?

• For procurements over which the Chief Procurement Officer has authority, procurement officers have the right to review and question the specifications or scopes of work that the user has provided, such as the need for a restrictive specification (e.g., specifying Xerox copiers).• It may even include the authority to question the

underlying needs that the user has expressed as the reason for the procurement (such as the need for 10 Cadillac Escalades with leather heated seats).

What Does This Mean?

• Whether you write them or review them, you need to scrutinize them carefully.• Catching subtle errors is hard for most

specification/SOW writers because they read the drafts from their own point of view. • You will still tend to see the specifications and

scopes of work through the eyes of a government employee.

Change Your Perspective

• Shift your mental gears into reverse and look at the words you've written as if you were a business owner in dire financial straits. • Your objective is to satisfy the letter of contract

without satisfying the customer. • You know that your customer will think you're a

chiseler for delivering less than what was expected, but in this situation a satisfied customer is a luxury you simply can't afford.

Change Your Perspective

• Remember that the specifications and SOWs, along with the winning vendor’s response, are the most substantive parts of what will become the contract that is awarded.• In reviewing what you or someone else wrote, ask

yourself this question as well: If the contractor doesn’t satisfy the objective of the procurement and contract, to what language in contract (that is, solicitation specifications or SOW) may I point as a clear benchmark that the contractor didn’t perform?

General Rules for Writing

• Be consistent!• Identify assumptions and make them

explicit!• Ask the user whether he or she has made any

assumptions in what is identified in the procurement request or in drafts specifications or SOWs that he or she supplies to you.• Make sure that the solicitation spells out those

assumptions.

General Rules for Writing

• Be concise!• Keep both your sentences and words short and

simple. • When you've written a sentence, read it back

to yourself with all the modifiers and clauses deleted and determine whether any meaning is lost by removing those modifiers (adjectives and adverbs) and clauses.

General Rules for Writing

• Be concise!• Avoid sentences which are unusually long,

unnecessarily complex, or convoluted.• Aim for simplicity.• Look for opportunities to replace long words

with shorter words that convey the same meaning (utilization/use, modification/change, initial/first, optimum/best, demonstrate/show.

General Rules for Writing

• Be concise!• Look for opportunities to replace long words with

shorter words that convey the same meaning (utilization/use, modification/change, initial/first, optimum/best, demonstrate/show.)

• Verbs are important. Don’t use dull or imprecise ones where there are more descriptive ones. Selection of the right one can provide clarity and eliminate the need for confusing modifiers.

General Rules for Writing

• Use mandatory language properly. Use the word "shall" or "must" whenever you want to express a binding provision.• Use "will" to indicate something that is to be

done in the future : “The Department of Public Works will provide a schedule of delivery " or “The Department of Planning and Land Use Drawings will supply drawings."

General Rules for Writing

• Use the permissive terms "should" and "may" for non-mandatory provisions. • "Should" and "may" are frequently misused when indicating

options.• For example, the scope "The data should be furnished on

magnetic tape but may be provided on 80-column punch cards," contains no mandatory provisions. It would not preclude the contractor from furnishing magnetic disks. If what is meant is that tape is preferred but cards are acceptable, the provision should be stated this way: "The data shall be furnished on either magnetic tape or 80-column punch cards; however, magnetic tape is preferred."

General Rules for Writing

• Make sure to use the same word every time to designate a particular entity, official or activity. Are “vendors” and “bidders” supposed to be the same thing in the document?• If you intend to distinguish among the

meanings of terms, you must define each term in the document. • If you intend no difference in the meaning of

two words, use only one of them.

General Rules for Writing

• Don't use open-ended requirements such as "as directed," "subject to approval," and "satisfactory to.”• A contractor cannot predict in advance what will be

satisfactory or approved.• So, it must assume the risk that after the contract has

been signed, it can convince the responsible user personnel that what the contractor did is acceptable.

General Rules for Writing

• Avoid open-ended language.• Make an effort to be precise by searching for accurate,

descriptive words. • Although a degree of open-endedness is sometimes

unavoidable, available information is often overlooked.• "Catch-all" phrases should be avoided. Be specific

about what you want -- don't rely on broad scopes such as "good industry practice" or "workmanship shall be suitable for the purpose intended.“

General Rules for Writing

Be careful using "it," "they," "them," and "their.” When a pronoun is preceded by more than one noun phrase, it may be unclear as to what the pronoun refers.

Prior to accepting software or documentation developed by subcontractors, the Contractor shall evaluate them for completeness, technical adequacy, and compliance with Government contract requirements.

What is to be evaluated? Is it the products, or is it the subcontractors?

General Rules for Writing

• Don’t use acronyms or, if you do, define them.• Acronyms make documents hard to read.• The ways to avoid this problem are to avoid using

acronyms, especially ones that are project-specific, or to put a glossary of acronyms in your document. Make the glossary easy to find, and make sure each acronym is defined.

• Weed out pretentious or jargon terms (e.g., optimize, maximize, impact). Technical terms of a trade or profession are better but make sure that the definitions are clear.

General Rules for Writing

• Use active voice where possible.• Active voice is usually more concise, direct and readable

than passive voice. Passive: The building is to be painted by the contractor. Active: The contractor will paint the building.

• This is particularly true where services are being described. A sentence such as “Reports will be provided” doesn’t identify who is to provide them.

• Use examples carefully.• Where examples are used to explain a definition, tell the

reader whether these examples are only illustrations or whether they constitute a complete list of all examples covered by the definition.

General Rules for Writing

• Review the narrative to make sure that there are no ambiguities.• When you write a sentence containing a series

of prepositional phrases all in a row, you are running a risk of creating a ambiguity.

An example is: "The instructional materials shall be prepared for use by Navy instructors." Who was supposed to prepare the materials - the contractor or the instructors?

• Pay attention to which word each phrase modifies.

General Rules for Writing

• Review the narrative to make sure that there are no ambiguities.• Even where no ambiguous words are used and a

sentence can be reasonably diagrammed in only one way, a reader can be confused about its meaning. For example:

All surfaces... shall be painted white to increase reflectivity.• Does it mean "paint all surfaces white"? Or does it mean

"determine which surfaces have lower reflectivity than white paint, and then paint them white"? In fact, what the specifier really wanted all surfaces painted.

General Rules for Writing

• Review the narrative to make sure that there are no ambiguities.• Confusion occurs when a writer tries to apply a

modifier to two or more nouns without writing the modifier twice. Here's an example:

The flange shall be fastened by nuts and bolts of stainless steel.

• Which must be stainless - both the nuts and the bolts, or just the bolts?• Generally speaking, interpretation disputes will

probably be settled by applying the modifier only to the noun that appears nearest to the modifier.

General Rules for Writing

• Review the narrative to make sure that there are no ambiguities.• An ambiguity can occur when there are two or more

ways to read the structure of a sentence. Take, for example:

Flying aircraft may be hazardous.• Does it mean the act of flying may be hazardous? Or

that airplanes themselves may be hazardous. Maybe it means airplanes are hazardous only when in flight.• Regardless, it cannot be resolved from the content of

the sentence since "flying" may act as a noun an adjective or a verb.

General Rules for Writing

• Be careful when using commas.• Commas sometimes play a role in grouping clauses.

For example:The flange shall be fastened by three round-head screws, three flat-head screws, and three fillister-head screws all of grade eight.“ • That language specifies that three of the screws must

be of grade eight. If you add a comma before "all," then you've specified nine grade-eight screws.

General Rules for Writing

• Do not include in specifications or SOWs:• Contractual provisions dealing with legal, financial, or

contract administration related issues (cost estimates, designation of key personnel, option to renew, degree of confidentiality)• Boilerplate contract terms and conditions.

• The place in the solicitation where a bidder or offeror may find all of the narrative about the type of product or service it is being asked to supply should be limited to that information.

General Rules for Writing

If a part of the solicitation references another part of the solicitation, another document or a URL, you should go back and check all the cross-references and links just prior to release of the package.

General Rules for Writing

• Make all the things you write gender-neutral.• Avoid words like "man," "he," "him," and "his," which

might indicate that you haven't considered that the person involved might be a woman.• Instead, use "person," "they," "them," and "their," and

refer to people by their currently correct job titles like "firefighter" and "server" instead of the obsolete "fireman" and "waiter.“• A corporation or partnership does not have a sex. The

appropriate pronoun is “it.”

General Rules for Writing

Examine your sentences for cases where words are "understood" or assumed and insert the missing words where they belong.

The generator shall supply the processor with 10.5 amperes and the batteries 8.5 amperes.

• A “shall supply" has been left out.• So, it is not clear whether the understood

phrase belongs after "and" or after "batteries." • The resulting statement is ambiguous.

General Rules for Writing

• When you cite an outside specification or standard, you may actually be citing a lengthy and voluminous chain of documents.• Some of them may be obsolete or canceled.• There may be requirements in them that you are not

aware of that have a bearing on your product.

• If is important to have a guideline that governs this situation and defines what parts of the standard or specification are being used.

Types of Specifications and SOWs• Specifications for products are often a

combination of design and performance approaches, except for perhaps routine commercial products like office supplies.• But even those can have a design component, such as

requirements for recycled content in paper.• So, simply purchasing a commercial product doesn’t

mean that a specification won’t have both types of specifications.

Types of Specifications and SOWsSpecifications for a product should be confined where possible to what the product should do.• The goal in writing specifications generally is to

specify the performance or design of a product. • "The operator shall be capable of . . ." does not

require that the equipment do anything. It only requires that the operator have an ability.

Types of Specifications and SOWs• There is a continuum of increasingly more complex tasks

associated with specifications and scopes of work that go beyond simple the purchase of products and services.

• If a solicitation seeks a contractor to build or adapt a product, or to provide services toward a critical deliverable such as a process improvement report, and the contractor will be working over a period of time, the specifications or scopes of work need to tie into other sections of the solicitation and ultimately the contract.

Types of Specifications and SOWs• Like a construction contract, these longer term contracts must

include deliverables or milestones to ensure that the contract’s work meets what the contract requires, is completed on time and is within the contract price.

• Key solicitation/contract provisions that tie into the specifications or scopes of work answer the following questions:• How long should be work take and what are the milestones

along the way?• Will payment be based on?• Percentage of the work performed?• Completion of a milestone?• Time alone? Bi-weekly? Monthly?

Types of Specifications and SOWs• Key solicitation/contract provisions that tie into

the specifications or scopes of work answer the following questions:• Government acceptance of the work along the way

and of the final product or service deliverable• Defining this is critical so that a contractor knows

what it needs to do to be paid.• For products, final acceptance starts the beginning

of the period.• Final acceptance is also the point where the

government’s legal remedies for defective products or services decrease.

Importance of Market Research• Particularly for the more complex procurements, it’s

important to understand the user’s actual needs and the technical characteristics of the products or services that might meet those needs.• Collaboration with the user is essential. • Market research and analysis means collecting and

analyzing information about the capabilities of the marketplace to satisfy identified user requirements.• Drafting should begin after planning and market research

are complete.

Writing Performance SpecificationsIn instances where the government can’t describe the design features of a product, performance specifications leave out the unnecessary “how to” or detail. • Market research should focus on function, not

form.• Performance specification gives the manufacturer

latitude to determine how to best meet the government’s needs.

• The specification for the product may include some design details but they should be limited only to those that are essential.

Writing Performance SpecificationsCritical steps in deciding on and writing a performance specification are:• Understand the user’s needs and any technical

requirements of the needed product• Conduct market research with user to

determine ranges of performance that as possible.

Writing Performance SpecificationsFeatures of a well-written performance specification include:• Requirements are quantitative rather than qualitative.

Qualitative requirements are very sensitive to varying interpretations and misunderstandings.

Correct: Overall length of the tractor shall be 150 inches or less. Overall width shall not exceed 52 inches. Overall height shall be 85 inches or less.

• Requirements are verifiable. Instead of requiring something to be “rugged,” describe that it must survive a 15-foot fall onto a steel deck.

Writing Performance SpecificationsFeatures of a well-written performance specification:• Requirements should describe product interfaces in

enough detail to permit interchangeability with parts of a different design.

Correct: Contractor shall make a provision for the installation of 24-volt DC power cable access to the equipment.

• Requirements should be material- and process-independent.

Correct: All mowers shall be treated with manufacturer’s commercial standard rustproofing treatment.

Writing Performance Specifications• Performance specifications cover form, fit,

function and interface. • They should not include unnecessary

information.Example: Reinforcement shall consist of corrosion-resistant steel wires. Hose under 16Z shall have a single layer of braid, and hose 16Z and above shall have two layers of braid.Problem: Steel wires and layers of braid may not be the best way to reinforce the hose. The functional requirement is for the hose to withstand a specified amount of pressure.

Writing Scopes of Work

• Just as collaboration with the user and market research is critical for writing performance specifications, they are equally critical for writing a complex scope of work.• Often, for complicated technology systems, for

instance, the solicitation will contain many types of specifications along with scopes of work.

Writing Scopes of Work

Any scope of work should at least answer the following questions:• What needs to be done• Who will do what• When it should be done• Where it should be done• How will the contractor be paid• How will contract performance be measured, including

what is acceptable performance

Writing Scopes of Work

• It is useful to outline the scope of work before writing to help to ensure completeness, internal consistency, and good organization. • Here are some topics that you may wish to

address in a comprehensive working outline:• Objectives – Describe desired end objectives of the

project.• Context of Project - List background information that

will aid offerors in understanding the nature and origin of the requirements. Describe the relationship of the effort to major programs and goals.

Writing Scopes of Work

• Scope of work topics:• Scope - Describe the scope of what will be required of

the contractor efforts in support of project objectives. Include technical considerations that may influence an offeror's approach or efforts. Any previous related work that may influence an offeror's efforts or direction of approach should be specified. List any key specific tasks and subtasks.

Writing Scopes of Work

• Scope of work topics:• Acceptance - Establish points in the work where the

user takes actions for review, approval, acceptance, or rejection. Establish well-defined baselines for contractor performance measurement, including those tied to payment. • Responsibilities – Request offerors to identify user and

contractor participation needed for the project, as well as the nature and extent of responsibilities.

Writing Scopes of Work

• Scope of work topics:• Schedule - Require offerors to provide a

schedule of work outlining the key tasks and subtasks needed to complete the work.• Deliverables - Identify contractor delivery

requirements and require the offerors to show a delivery date for each on the schedule.

Writing Scopes of Work

• Scope of work topics:• Data Requirements - Identify technical data

requirements.• Person-Hours – If appropriate to the project or if

payment is tied to person-hours, require offerors to provide estimates of professional and technical person-hours.• Offeror Assumptions – Require the offerors to identify

any assumptions that underlie the proposals that they are submitting.

Writing Scopes of Work

• Arrange and present the elements of the scope of work in a manner that:• Is logical and readable• Emphasizes the most important parts• Conveys exactly what will be required of the

contractor.

• Unstated assumptions are the enemy of good specifications and scopes of work. Make sure that any that the government has made for the project are spelled out.

Example of a Performance-Based Statement of Work

Exhibit 3 – Excerpts from an Arizona State University Request for Proposals

The Take-Away from this Session• You as a procurement professional must scrutinize not just the

specifications or scopes of work for problems such as restrictiveness. You must also look carefully at the language to make sure that it is clear and unambiguous. Specifications and scopes of work turn into contracts.

• In order to provide the right perspective so that you can see what is written from something other than in “in-house” point of view, you need to put yourself in the head of the vendor. While you don’t generally want to think of vendors as nefarious, you need to be looking for loopholes and poorly-expressed needs through which a vendor –theoretically of course – would try to drive a truck.

Sources Used

• http://www.plainlanguage.gov/• http://www.navair.navy.mil/nawctsd/Resources/Library/

Acqguide/SpecTop.htm#conamb• http://spo.hawaii.gov/wp-content/uploads/2013/12/Spo

122SpecsScopeOfWorkRef.pdf• Guide To Preparing A Scope Of Work, State of Montana

Department of Military Affairs, Centralized Services Division Procurement Office (May 2013)http://www.window.state.tx.us/procurement/pub/contractguide/contract-mgmt-guide-v1.12.pdf