Request For Proposal Handbook - Michael Asner RFP Books, Newsletters & Articles

Over the last ten years, I’ve spent a lot of time discussing legal issues with public sector procurement executives. We’ve discussed laws and regulations, best practices, and litigation. We’ve discussed “avoiding litigation” as a significant yet unwritten part of the procurement function.

These discussions often deal with “best practices” – things that we can do which will reduce the probability of being sued. Or, if we are sued, increase the probability that it will never get to trial because we did no wrong and could demonstrate the soundness of our process.

This issue of The RFP Report deals with things you can do as part of the competitive process to ensure that your actions can survive scrutiny by the vendors’ lawyers and the courts. Now, as we all know, litigation cannot be totally avoided. Anyone can sue you, for any reason. And sometimes, organizations get sued, not because they have erred, but because one particular vendor was truly angry, or the vendor wanted to ensure that next time, the procurement people would be very careful in how they treated that vendor.

There are lots of activities which improve the RFP process; for example, issuing a draft RFP, using outside experts, or employing Best and Final Offers.

Here are some of the document-driven activities which, if done properly, make it extremely difficult for the vendors’ lawyers to be enthusiastic about their chances of winning in court. These activities when completed as part of the RFP process help ensure that the competition is “fair and open”. And just as importantly, the documents which are part of these activities, when viewed by a lawyer after the award has been made, demonstrate that the process was well-planned and micro-managed to ensure that each vendor was treated fairly.

1. Follow an RFP road-map.

Use this document to demonstrate that the entire process was properly planned.

Developing and issuing an RFP, and selecting the “best value” proposal is a common process based on “fair and open competition”. Many jurisdictions base their process on the Model Procurement Code developed by the American Bar Association in the 1980s and recently revised. The State Procurement Bureau, State of Montana provides Montana Agencies with a good road map based on a 22-step RFP process and a 50-page RFP Manual.

2. Specify the activities of the Evaluation Committee.

Use this document to demonstrate that the Evaluation Committee was properly organized and directed to ensure fairness.

Members of the evaluation committee are usually selected because of their knowledge or expertise related to the procurement. In some organizations, members of the evaluation committee may have pre-existing, informal relationships with contractors. It is important that each person on the evaluation committee understand their role and the critical nature of their activities and behavior during the process. In many jurisdictions, care is taken to ensure that there are no conflicts of interest and the proposals and deliberations are kept confidential. Committee members are provided written instructions and are often required to sign agreements on how they will behave. In Arizona, there is a State law requiring a declaration from each committee member. In Alaska, each prospective member of an Evaluation Committee is provided with RFP Evaluators Guide.

3. Develop a fairness plan.

Use this document to demonstrate that you have taken steps to ensure that your process is equitable, justifiable and sound and provides equal opportunity for all proposers.

The Victoria Government Purchasing Board (Australia) has produced some excellent documentation related to the entire procurement process. Probity, defined as “unimpeachable honesty and virtue” or “complete and confirmed integrity”, is a critical issue. They have developed and published a policy which is accompanied by a Probity Plan Template. This 28-page document contains a list of 40 tasks which, when executed, help ensure compliance with public policy. Once the process is finished, this document can be used to prove that the entire process complied with public policy and the law.

Use this document to demonstrate that the Evaluation Committee was briefed on their responsibilities and that the step-by-step evaluation procedure was established before the proposals were opened.

The evaluation process often becomes the center of controversy and intense scrutiny. It is a common practice to define the details of the evaluation process while the RFP is being developed. In most organizations, the Project Manager or Procurement Officer reviews the evaluation procedure with the Evaluation Committee just before the proposals are distributed. They want to ensure that each evaluator understands the process and performs accordingly.

Some organizations provide the evaluators with score sheets; others, with a description of their responsibilities. Some organizations provide each evaluator with a Guide, a detailed description of the evaluation process based on the RFP itself. While these Guides take time and effort to prepare, they are worth it! These Guides help the evaluators understand the process and their responsibilities. They simplify the work of the evaluators and they are a great tool in defending the process from criticism.

The Atlantic Lottery Corporation’s Evaluation Charter is one of the best I’ve seen.

Use this document to demonstrate your sense of fairness, and your organization’s willingness to deal with suppliers’ concerns (without litigation).

The existence of a well-written reasonable debriefing procedure will re-enforce the idea that the entire RFP process was done properly. It will also convince some disgruntled vendors to seek more information before talking to their lawyers. And finally, an inviting and open debriefing process permits you to find out which vendors are really, really angry and gives you an opportunity to defuse the situation.

Use this document to inform vendors that you will attempt to resolve their issues through discussions and negotiations, rather than litigation.

A written protest procedure can direct (and control) the vendors’ activities, promote confidence in the process, promote the resolution of grievances, and restricts or discourages frivolous protests. There are many examples of protest policies and procedures. Some are statutes; others, policies or guidelines. They all deal with the same set of issues: Who can protest? When? What is the procedure? Who decides if the claim has merit? What are the remedies? What happens to the pending contract during the protest process?

Documents 1 through 5 have been omittted from this extract. Here is what the Report says about one of these documents.

Protests must be initiated within two days of the notice of award of a contract. Only proposers can protest. Protests may not challenge the evaluation criteria or weights. And protests are first dealt with by the Chief Procurement Officer.

The State of Nebraska has a one-page protest procedure that identifies the timing (within ten days of intent to award), the official in charge (Materiel Division Administrator), and the tasks.

http://www.das.state.ne.us/materiel/purchasing/rfpmanual/form_protestprocedures.pdf

The City of Orlando has a two-page Bid Award Disputes procedure. Protests often cause the contract award to be suspended until the protest is resolved.

G. In the event of a timely protest and/or appeal, the City shall not proceed further with the solicitation or with the award of the bid/contract unless the Director, after consultation with the head of the using agency, forwards to the Chief Administrative Officer a written request to award the bid/contract without delay in order to protect the public health, welfare or safety.