A trail of great documents

intimidates their lawyers!!!

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.

Six Great Documents

4.         Publish an Evaluation Guide.

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.

5.                  Publicize an effective debriefing procedure.

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.

6.                  Document the protest procedure.

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?

(THIS EXTRACT DEALS ONLY WITH DOCUMENT 2. THE DISCUSSION OF DOCUMENTS 1 AND 3 THROUGH 6 HAS BEEN OMITTED.)