The Procurement and Tendering Process: Part Five

In the 5th iteration of our procurement and tendering process, we take a look at how to evaluate the RFP opportunity and prepare a successful response. In Part 6, we will look at this in more detail, such as how due diligence should be conducted on behalf of the bidder.

Information Exchange During the RFP Process

The ability of all potential bidders to receive and review the information is critical to an informed and responsive bid and a fair process; therefore, no one bidder should be advantaged by receiving specific information that was not available to the other bidders. This helps ensure a level playing field and avoids potential complaints and disputes about the procurement process. To this end, many RFPs provide that failure to adhere to the communications requirement is grounds for disqualifying the bidder.

Another important part of evaluating the opportunity is bidder due diligence. The RFP usually has a communications section dealing with the process under which bidders can make enquiries. Typically, the RFP establishes a single point of contact as well as a process for dealing with responses so that each of the bidders has access to all of the responses that have been given to enquiries made.

Nonetheless, a successful response to an RFP starts with a thorough understanding of its requirements. While the observation is overused, understanding starts with reading the RFP. The RFP documentation must be read over and over again in detail  by the bidder’s project team and its professional advisors.

Confidential Enquiries

RFPs sometimes include an enquiry procedure that allows the bidder to specify its enquiry as “confidential” or “proprietary” versus “non-proprietary”. Confidential enquiries are used when the nature of the bidder’s question is such that the bidder feels that it would not be appropriate to disclose its question (and possibly the owner’s response) to its competing bidders, as this might put the bidder at a competitive disadvantage (or obligate it to share an advantage) or require it to disclose proprietary or confidential information that would not be appropriate for competing bidders to see.

Attend Bidder Information Meetings

A bidder information meeting is an efficient way to for the owner to exchange information with all bidders. It also provides an opportunity for bidders to obtain additional clarification or information for preparing their response. Here, the RFP will specify the process for submitting questions to be answered at the meeting in order to help the owner ensure that the appropriate persons are available to answer the questions. As well, the RFP should specify whether the information sessions is mandatory or optional. The RFP may also specify the number of individuals from each bidder that can be in attendance and the process for notification of who will be attending. This may be helpful where there are a large number of bidders and capacity and time constraints exist.

Written by Jeremy Power, a lawyer in our Toronto office

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

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