This article is sponsored by Fasken Ottawa.
We all know the routine. The request for proposal is released. Endless days and nights are spent preparing the bid – fueled by fluctuating levels of stress and anxiety, takeout pizza and gallons of coffee. The final product is finished and submitted just before the deadline. The team believes this one is a winner. But it’s not. Everyone is shocked.
In the run-up to the federal and Ontario governments’ fiscal year-ends, here are five reasons why the usual routine doesn’t always result in the outcome hoped for by a bidder.
1. Waiting for the RFP to hit the street
A positive trend amongst public-sector buyers to improve the success of their procurements is the use of early engagement sessions – often held in advance of the drafting of the RFP.
These sessions seek out industry feedback to determine whether industry has the current capability to meet the requirements or can develop it if it doesn’t exist, to provide industry with advance notice of specific requirements or to review future projects. Engagement sessions give suppliers the context for the procurement, providing an open forum to gain advance understanding of requirements. These sessions often provide suppliers with an opportunity to provide input into the process, ask questions, seek clarification, meet government officials involved in the procurement process and see who potential competitors will be.
For companies that often act as subcontractors, this is an opportunity to meet potential prime contractors. Once the final RFP is released, the requirements are pretty well baked into place and the opportunity to significantly influence them is over.
2. Treating draft RFPs like draft RFPs
Draft RFPs should be given equivalent levels of due diligence and attention as final versions of RFPs. Many of the rules of the process set out in the draft RFP will stay consistent through to the final RFP. Elements such as bidder instructions, mandatory certifications, governing policies and standard terms for contracts are often pre-determined or in template form; so when they appear in a draft RFP, they should be closely reviewed and acted upon.
Imagine, in the middle of the mad rush to get the bid together in the dwindling hours before closing, someone suddenly realizes that the bid requires a mandatory certification that has to be signed by the company CEO1. But she’s in the Andes. Walking with llamas. Without a phone.
3. Not taking advantage of the question-and-answer period
This is the one of the biggest bidder errors – and it is often made for all the wrong reasons. In general, there is no limit on the number of questions that can be submitted. Procurement authorities are expecting questions. If a response from a procurement authority is unclear, it is entirely appropriate (and absolutely necessary) to submit further clarification questions.
Even if a final RFP is in play, procurement authorities can amend RFPs to provide clarifications or correct errors in the documentation. Bidders remain responsible for ensuring they understand the requirements and submit a bid that responds to them. Taking a wait-and-see approach is never a good strategy. Once final bids are submitted, bid errors (aside from minor administrative errors) cannot usually be fixed.
While procurement authorities usually reserve a right to seek clarification from bidders on their bids, the exercise of this right is discretionary – they are not obligated to seek clarification.
4. Submitting a bid that offers something different than what was required
This is tied with No. 3 as a top bidder error. It’s often the result of a bidder believing that the buyer can be convinced to accept an alternative to what was asked for; failing to closely read the requirements to ensure a full understanding of what is required; or making assumptions about what a requirement means when it is unclear.
The time for convincing the buyer that your solution is a better alternative than what they are looking for is long past (see No. 1). Public-sector buyers are subject to strict rules in procurement – if the requirements are for a particular technical outcome or solution, then that is what the bid is evaluated against. Accepting an alternative that does not meet the requirements, unless the RFP expressly permits, amounts to acceptance of a non-compliant bid.
5. Not seeking a debrief
It may seem that this shouldn’t impact the success of a bid. But it does. If a bid fails, it is crucial to know whether this was as a result of something that was misinterpreted, misunderstood or missed entirely (and thus can be prevented in future bids), or an evaluation error on the part of the procurement authority. If the bid was improperly evaluated by the procurement authority, you will need to decide quickly whether or not to protest the decision, as the timeline for bid protests is usually short.
For additional commentary on how to approach a public procurement, see my previous post, Want to win government business? Don’t be too ‘commercial–centric.’
Marcia Mills is procurement counsel with the Fasken Ottawa office and has more than 20 years of private and public-sector experience working with supplier teams to prepare bids and public sector clients to review bids. She provides clients with legal and strategic advice for all aspects of government procurement, advice on government policies and procurement processes, and lots of coffee. She can be reached at email@example.com.
1This problem could have been avoided in two ways: getting the certification executed at the start of the bid preparation process or submitting a request to the procurement authority to change the requirement to permit the certification to be executable by any senior company executive. This would allow greater flexibility for bidders and still meet the procuring authority’s objective to have a certification that can be relied upon.