As procurement practices mature, we find that most organizations are taking a more nuanced approach to this issue.

For example, if the opportunity is likely to attract smaller ‘mom and pop’ respondents, then attaching lengthy terms and conditions can be a huge impediment to receiving quality responses. They don’t have the internal expertise to dissect and analyze these legal details, and are unlikely to engage legal counsel to do so, in speculation that they might win a contract. Even worse, they may simply respond without looking at the terms and conditions, and then you could have a battle on your hands when it comes time for contract execution.

Consider the size and complexity of the opportunity, the sophistication of the market and the importance of locking those important details down on the front end. Whether your process is binding or not, if there are critical terms that must form part of the deal then, by all means, identify those for respondents in the RFX.

For smaller contract opportunities the terms and conditions can likely be streamlined to fit the market capabilities while still addressing key risk areas for your organization.

Readers are cautioned not to rely upon this article as legal advice nor as an exhaustive discussion of the topic or case.  For any particular legal problem, seek advice directly from your lawyer or in-house counsel.  All dates, contact information and website addresses were current at the time of original publication.