Procurement
May 7, 2012

Avoiding the attack of the disgruntled vendor

Sore losers: we all know they like to involve their lawyers and deliver threats of legal action.

To be fair, proposals cost companies much time and effort. So when a vendor fails to win a lucrative contract, sometimes they try to recover by suing, citing a flaw in the evaluation process, real or imagined, as the basis of an unfair award. True or not, you still end up having to spend great amounts of time and money to defend your actions.

While you can never totally eliminate vendor threats or legal action, there are steps that can be taken that will ensure that the process is defensible. There are also steps that can be taken to intimidate the lawyers representing disgruntled suppliers. Finally, there are steps to ensure that that the competition is fair and open and is not unduly restrictive.

These tasks take time. They lengthen the process. They increase your costs. But each contributes to bulletproofing your RFP process. Here are some of them:

Select an evaluation team based on needed skills and experience. Ensure that each person is aware of their role and the time commitment. Get each evaluator to sign a conflict of interest declaration and a confidentiality agreement and provide each evaluator with a code of conduct.

Ensure that you have the support of senior management. You need their buy-in to your process, its timetable and cost. You need their active support for “fair and open.” You need them to confirm by their words and deeds that the process is truly “fair and open” and that they will let the process unfold. Have senior management sign a confidentiality agreement before briefing them during the process.

Get help from Legal Services. You need help with the RFP and its terms and conditions. You need to ensure that the RFP establishes the rules for running the competition and that these rules are consistent with recent court rulings. You have to ensure that the RFP is “forgiving” – establishing a set of rules so that minor transgressions do not eliminate proposals. Finally, you need access to Legal Services during the process to provide advice related to situations that invariably arise.

Hire a fairness consultant, a person whose only job it is to ensure that the RFP process is run in a fair and open manner that is legal and can survive intense public scrutiny.

Develop a probity (fairness) plan. This key document sets the tone within your organization. It should be widely distributed. All of the stakeholders and their bosses should receive a copy. Once the process is finished, this document should be made available to the public.

Use documents to drive the RFP process. Abandon informal procedures. Document everything. First plan, then document the plan, then execute the plan, and then document the execution of the plan. Documents clearly establish that the process was fair and open. Good documentation intimidates lawyers and reduces the proponent’s inclination to sue to save face.

Consider forming an industry group to advise you on the specifics of the RFP. This group could be charged with reviewing a draft RFP and commenting on its deficiencies. This tactic will ensure that you know what the issues are from each proponent prior to receiving proposals.

Arm yourself with expertise. If the requirements are highly technical, use an acknowledged expert from an outside organization to either develop the requirements or to review the requirements developed in-house. This expert must sign a confidentiality agreement and agree to abstain from any other activities for any vendors related to this procurement. Use this advisor to assist the evaluation committee in assessing the proposals.

Issue a draft RFP. Let the vendors tell you where they think the RFP is deficient and then fix those deficiencies. Issue it to the vendor community and give them two weeks to provide input. On week three, issue the revised for-real RFP. The two or three week delay can result in the vendor community accepting that your RFP is fair.

During the RFP process:

  • Have a court reporter issue a transcript of the vendors’ meeting rather than relying on minutes.
  • Have the fairness officer attend all project team meetings.
  • Designate one person as the only contact for the project.
  • Insist that all vendor contact with team members be reported to the fairness officer.
  • Once the RFP has been issued, do not have conversations with any vendor about the work.
  • Don’t accept telephone calls. Use faxes for all questions.

Once the award has been approved, provide any vendor or proponent with a copy of the recommendation memo. Offer vendors a debriefing session, chaired by the fairness officer, and tape record the session.

 

Michael Asner is an independent consultant specializing is public procurement (michael@rfpmentor.com). Sharon Sheppard is a freelance writer and editor (sharons1963@me.com).

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