Invitation to tender: 10 crucial questions before you pitch

In today’s highly competitive legal markets, few big mandates are won without having to go through a competitive tender process. Large panel reviews grab the headlines in the legal press on a weekly basis. For those law firms which miss out in these tenders, the wasted time and negative impact on partner and staff morale can be considerable.

In an ideal world, we would all hope to be able to avoid the need to tender for work, and where you have a good relationship with a client, the loyalty that this engenders may save you from having to do so. But on many occasions, you will be asked to pitch. So, what can you do to maximise your chances of success?

Before accepting an ITT, ask yourself the following questions:

  1. Does the work fit with our strategy?

The purpose of a business strategy is to map out how a firm aims to achieve its desired position in the market. If your objective is to be a leading player in the media sector centred on London, why would you want to accept an ITT to provide legal services to a widget manufacturer based in the Midlands? Any activity which diverts resources from your chosen strategy will reduce your chances of achieving your firm’s goals. So, if the work does not fit, decline the opportunity.

  1. Does our firm have the resources and expertise to do the work?

The main reason firms lose tenders is usually because some other firm has better expertise and/or more resources in the right places to do the work. Be honest with yourself about the capabilities which your lawyers possess. If the other firms you are up against can field a handful of lawyers, all ranked in the first tier in the legal directories, and all that your firm has is one lawyer who dabbled in the area some years ago, you are going to lose the pitch.

  1. Who else has been asked to pitch?

Usually not something that clients are prepared to divulge, but if you can find out you can make a realistic assessment of your chances of success knowing the other firms’ capabilities. If you are on a long list of firms invited, “chosen from the legal directories”, ask yourself what your chances are.

  1. Are there any conflict situations, now or in the future?

This should be an easy one. Internal conflict checking should sort this out quickly and where there is a doubt, ring the client to see if they are happy for you to act for the other party. Where it gets tricky is looking to the future. If you get an ITT from a second-rung player in a sector when you know ideally that you would like to be acting for one of the leading players, who you are already in the process of targeting, you need to walk away from this immediate opportunity.

  1. Is it a “level playing field”?

Often a difficult one to assess, but a situation where the decision-makers already know who they wish to appoint and are just going through the motions, or just want to keep the incumbents on their toes by making them retender. In such situations, the giveaway signs are that the organisation is often less willing to engage with you, eg they will not make themselves available for a scoping meeting, or you may have an inside contact who reveals the organisation’s real intentions. In such a situation, decline the opportunity as you are just making up the numbers.

  1. How strong are our relationships with the organisation’s decision-makers?

The old adage “people buy people” applies here. You will be in a much stronger positon if you already know some of the decision-makers. You will know how they operate, what their issues are, and what “buttons” to push to get the desired outcome. They will know you and your capabilities and will hopefully be lobbying internally on your behalf. If you know the decision-makers, you will almost certainly know the ITT is on its way, so you can do some advance preparation. You may even have helped them shape the ITT, which clearly gives you an advantage.

If you do not know the decision-makers, ask for a scoping meeting so that you can meet them in person and begin the process of relationship building. If they decline, be suspicious of their intentions.

  1. Is the work profitable?

Not such a daft question, if the only way you are going to win the ITT is by discounting your fees or having to provide so much free “added value”, eg secondments and training, that it eats into your margins. Remember, there is an opportunity cost to doing this work if your lawyers could be working on more profitable instructions for other clients.

  1. Will the work expose our firm to unacceptable business risks?

Again, this should be an obvious one. If the client and its directors/owners are currently or have in the past been guilty of dubious business practices or even criminal activity, give them a wide birth. Clients active in certain geographical regions or sectors may bring “baggage” which also impacts on reputational risk.

  1. Is it a prestigious client that would boost the firm’s standing?

“Wouldn’t it be great to have this FTSE 100 company on our client list?” Well, if any of the above apply, no! Don’t get caught up in the glamour of working for a big name client. If the instructions are less profitable, the people are a pain to work for, there is a risk to your firm’s reputation, or you are not going to be credible up against the magic circle firms who you are competing with, just walk away from the ITT.

   10.  Say “no” politely

Declining to accept an ITT has to be done politely. You do not want to antagonise the decision-makers, as you never know when you might bump into them again and in the future, under different circumstances, you may want to work for the organisation. So, if you feel your expertise is a bit lacking or you have a conflict or your lawyers are busy, just say so.

In summary…

As a rule, think very carefully before accepting ITT’s that come “out of the blue”, from organisations that you do not know, where you are not given the opportunity to meet the decision-makers at the outset of the pitch process in order to scope their requirements, and where a large number of other law firms have been asked to pitch.

Filed Under: Practice of Law

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