Tender Clarifications: Think Before You Send

A clarification can protect your price, margin, and entitlement. It can also remove an ambiguity that was working in your favour.

During the tender stage, contractors are often encouraged to ask questions, remove ambiguity, and seek clarity before submitting their price. In principle, this is correct. In practice, it requires careful commercial judgment.

Not every clarification protects you. Some clarifications save you from pricing the wrong risk. Some prevent future disputes. But some simply give the other party an opportunity they did not know they had.

The Hidden Cost of Unnecessary Clarifications

Tender documents are rarely perfect. Clauses, specifications, scope items, drawing notes, and pricing instructions often contain genuine ambiguity - and ambiguity cuts both ways.

Where a document can reasonably be read in two ways, one interpretation may benefit the contractor. The other may benefit the owner, principal, or head contractor.

If the contractor immediately raises a clarification, the owner will usually respond by confirming the interpretation that suits the owner. The ambiguity disappears - but not necessarily in the contractor’s favour.

The contractor may then be required to price a wider scope, accept a heavier risk allocation, or include costs that may not have been required under a reasonable reading of the tender documents.

That clarification did not protect the contractor. It cost the contractor.

Contra Proferentem: The Principle Contractors Should Understand

There is a well-established legal principle known as contra proferentem. In plain terms, where a contract clause is genuinely ambiguous, a court, tribunal, or decision-maker may interpret it against the party that drafted it.

If the owner or head contractor prepared the tender documents and left an ambiguity in the scope, specification, or contract terms, that ambiguity may later be interpreted in favour of the contractor - provided the contractor’s interpretation is reasonable and properly supported.

A Practical Example

Assume the tender documents state that the employer must respond to submissions for approval within 10 days, but they do not say whether those are calendar days or working days.

The difference is material. Ten working days is effectively two weeks. Ten calendar days is 10 consecutive days, regardless of weekends and public holidays.

If the contractor raises a clarification, the employer may confirm that the period means 10 working days. That answer gives the employer a longer review period and may reduce the contractor’s ability to rely on late approvals later.

If the contractor proceeds on the reasonable interpretation that 10 days means calendar days, and clearly records that interpretation in its tender assumptions or contemporaneous tender record, the contractor may preserve a legitimate contractual position if employer responses are later delayed.

This is not about being dishonest. It is about understanding that ambiguity in tender documents is a legal and commercial reality, and that the party preparing those documents carries responsibility for clarity.

The Right Question Before Sending a Clarification

Before sending a tender clarification, stop and ask:

“Does this clarification protect us - or does it give the other party an opportunity to close an ambiguity that currently works in our favour?”

A Practical Decision Checklist

Clarify where:

The ambiguity creates serious delivery risk or execution uncertainty.
You cannot responsibly prepare a tender price without an answer.
The cost exposure is material to your margin.
The ambiguity may create a dispute that is more dangerous than any tactical benefit.
The issue affects safety, compliance, approvals, programme certainty, or major subcontract scope.

Consider not clarifying where:

The ambiguity is in scope or contract wording and your reasonable interpretation is narrower or more favourable.
The owner has not noticed the ambiguity and the clarification would simply alert them to it.
You can clearly document a defensible interpretation and price the tender on that basis.
The commercial risk is manageable and the contractual position is worth preserving.

Where you proceed without clarification, do not rely on memory or silence. Record your interpretation clearly, either in your tender submission, tender qualifications, internal tender review notes, or a contemporaneous commercial record. If the issue is disputed later, that record may become important evidence.

Tendering Is Commercial Strategy, Not Just Pricing

Many contractors lose money before a project even starts - not because they priced badly, but because they gave away contractual positions that did not need to be given away.

They clarified ambiguities that could have protected them. They treated tendering as an administrative exercise when it was also a commercial and contractual strategy.

Reading tender documents commercially means understanding risk allocation, identifying ambiguity, deciding when to seek clarity, and deciding when to proceed on a reasonable and documented interpretation.

A clarification can save you.

A clarification can cost you.

The skill is knowing the difference before pressing send.

Matrix Construction Claims Consultants assists contractors and subcontractors with tender review, contract risk assessment, scope interpretation, clarification strategy, tender qualifications, and claim and dispute prevention.

Because the most important commercial decision on a project is often not only what you price.
It is what you ask - and what you choose not to ask.

Boost Your Margin. Protect Your Entitlements.

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