Winning a public authority, municipality or region as a customer can represent a significant commercial opportunity. At the same time, the contractual requirements can be considerably more extensive than in a typical commercial SaaS or IT transaction.
A public procurement may contain hundreds of requirements relating to the service and the supplier, together with detailed contractual provisions covering liability, information security, data protection, service levels, audit rights, business continuity, subcontractors, exit and other matters.
For the supplier, the question is therefore not simply how to submit a compliant bid.
You also need to understand:
Sharp Cookie helps SaaS, software, cloud and IT suppliers manage these questions before, during and after a public procurement process.
We combine experience in technology contracts with data protection, information security and public procurement. Our focus is on establishing a contractual position that is both competitive in the procurement process and commercially sustainable if you win.
This is often where we come in.
A prospective public-sector customer has published tender documents or invited you to participate in a procurement process. The sales organisation sees an attractive opportunity, but the documentation contains extensive legal, technical and commercial requirements.
Not all requirements are equally important.
We help management and bid teams distinguish between:
The objective is not to analyse every line of the procurement documents from a purely legal perspective.
The objective is to identify what could affect the decision to bid, your competitiveness, the cost of delivery and your risk exposure if you win.
We can support the entire transaction or step into a defined part of the process where specialist advice is required.
In an important procurement, it can be valuable to identify the principal risks before the organisation commits significant time and resources to preparing a bid.
We can carry out a focused review of the procurement documents and identify, for example:
This gives management a better basis for the bid/no-bid decision and for deciding how the opportunity should be prioritised and priced.
Once you have decided to participate, we assist with the legal and commercial issues that arise during preparation of the bid.
This may include assessing how a requirement should be interpreted, preparing questions and requests for clarification, analysing contractual terms or determining whether a proposed commitment actually works with the service you provide.
We can work directly with your bid team, sales organisation, in-house legal counsel, product organisation or information security function.
Our role is not to do the bid team’s work. We step in where specialist legal and commercial judgement is needed.
A common challenge for SaaS and IT suppliers is that public-sector customers use contractual terms designed for broad or customer-specific IT deliveries.
Those terms do not always fit a standardised SaaS or cloud service.
Issues may arise in areas such as:
Liability and remedies
Liability caps, contractual penalties, service credits, indemnities and exclusions from limitations of liability can, in combination, create a very different risk profile from the supplier’s standard agreement.
Service levels and delivery commitments
Requirements relating to availability, support, incident management and response or resolution times need to reflect how the service is actually delivered.
Information security
The customer may impose extensive requirements relating to technical and organisational security measures, incident reporting, audits, business continuity and the supplier’s internal processes.
Data protection and personal data
Data processing agreements, instructions, subprocessors, international transfers, audit rights and security requirements need to work with the service’s actual data flows and architecture.
Subcontractors and cloud infrastructure
Requirements concerning approval, replacement or control of subcontractors can be difficult to reconcile with a scalable cloud or SaaS model.
Intellectual property
The customer’s standard terms may include rights to deliverables, adaptations or other material that need to be distinguished from the supplier’s existing product, platform and intellectual property.
Exit and business continuity
Requirements relating to transition, data export, continued service, escrow or post-termination assistance need to be both operationally feasible and commercially priced.
A requirement may be legally possible to accept and still be commercially inappropriate.
We help you identify that distinction.
A public-sector transaction does not work in the same way as an ordinary commercial contract negotiation.
The ability to amend a contractual provision may be limited by the structure of the procurement and the principles governing public procurement. A requirement that would be straightforward to negotiate with a private-sector customer may therefore need to be addressed differently.
This makes timing particularly important.
A problematic contractual provision should often be identified while there is still an opportunity to ask questions, seek clarification or invite the contracting authority to consider an amendment – rather than only after the award decision.
We help you assess:
This requires an understanding of both public procurement rules and the underlying technology transaction.
Technology transactions in the healthcare sector can place particularly extensive requirements on the supplier.
In addition to procurement and contractual issues, the transaction may involve patient data and other sensitive personal data, information security, access controls, logging, business continuity, incident management, subcontractors and the customer’s regulatory obligations.
For a SaaS or technology supplier, it is important to distinguish between the customer’s regulatory responsibilities and the commitments that the supplier can and should assume contractually.
Sharp Cookie advises technology suppliers at the intersection of SaaS and IT contracts, data protection, regulatory requirements and public procurement.
This allows us to assess the requirements as part of one transaction rather than as separate legal issues.
The award decision does not always mark the end of the contractual work.
Questions may remain concerning implementation, contractual schedules, security documentation, processing of personal data, subcontractors or how particular requirements should be translated into the actual delivery.
Issues may also arise later in the contract term as a result of changes to the service, new functionality, AI, new subcontractors, security requirements or other developments.
We can therefore continue to provide legal and commercial support after the procurement process has concluded.
Where the procurement procedure permits negotiation, or contractual issues need to be addressed as part of the transaction, we can support your team or participate directly in the negotiations.
We help establish priorities and fallback positions and distinguish between issues that genuinely need to be resolved and points that should not consume unnecessary negotiating capital.
For more extensive support with the contract negotiation itself, see SaaS & Technology Contract Negotiations.
You do not need to hand over the entire procurement process to us.
Sharp Cookie can be engaged for a defined second opinion on, for example:
For a broader senior review of an important customer agreement, see SaaS & Technology Contract Review.
To advise a supplier effectively, it helps to understand how larger customers think.
Sharp Cookie works with complex technology contracts, SaaS, cloud services, outsourcing, data protection and public procurement. We have experience from both the supplier and customer perspectives and from transactions where technology, law and commercial risk need to be managed together.
This makes it easier to distinguish between a customer requirement that serves a genuine purpose and a standard requirement that should be challenged or addressed in another way.
We take a pragmatic approach. The objective is not to eliminate all risk, but to help you understand what risk you are taking, why you are taking it and whether the deal justifies it.
Contact us when you receive the procurement documents – or earlier if you are preparing for an important public-sector opportunity.
Briefly tell us:
Where appropriate, send us the procurement documents, draft agreement or other relevant material.
We will assess the matter and propose an appropriate way to support the transaction.
