Prepared for California State University, San Bernardino Best Practices in State & Local Government Contracting Module 4 – Request for Proposals (RFP) Provisions Prepared for California State University, San Bernardino Management Certificate in Public Procurement (MCPP) Module 4: Request for Proposals (RFP) Provisions Prepared by William Sims Curry, CPCM, NCMA Fellow Author, Contracting for Services in State & Local Government Agencies Government Contracts:  Books  Research  Consulting

TOPICS COVERED 4 Request for Proposals (RFP) Provisions Best Practices in State & Local Government Contracting Module 4: Request for Proposals (RFP) Provisions TOPICS COVERED MODULE TOPIC__________________________________________ 1 Description of Research Project – First 3 Best-Practices 2 Definitions & Proposal Evaluation Criteria 3 Formulas for Weighing Proposal Evaluation Scores 4 Request for Proposals (RFP) Provisions 5 Evaluating Proposals & Monitoring Contractor Performance 6 Underrepresented Contract Terms & Conditions

“Specify Proposal Format in RFP” Best Practices in State & Local Government Contracting Module 4: Request for Proposals (RFP) Provisions Best Practice “Specify Proposal Format in RFP” 2006 Conformance = 73% 2015 Conformance = 93% Promotes proposal evaluation efficiency Simplifies proposal evaluation team members’ tasks Ensures consideration of all relevant proposal elements Verification: No known requirement to specify proposal formats, but easing the proposal evaluation effort & high level of conformance with this best practice verify status as a best practice.

“Set Page Limit for Proposals” Best Practices in State & Local Government Contracting Module 4: Request for Proposals (RFP) Provisions Best Practice “Set Page Limit for Proposals” 2006 Conformance = 5% 2015 Conformance = 57% Simplifies proposal evaluation task Assists small businesses competing with large corporations Avoids bulky, verbose proposals Verification: No known requirement, but this is related to best practice of specifying format for proposals that also simplifies the contracting agency’s proposal evaluation task.

“Include Model Contract in RFP” Best Practices in State & Local Government Contracting Module 4: Request for Proposals (RFP) Provisions Best Practice “Include Model Contract in RFP” 2006 Conformance = 77% 2015 Conformance = 67% Avoid contractors proposing their contract format Avoid negotiation of contract provisions not previously seen by prospective contractors Verification: This is a “common sense” approach to drafting solicitations.

“Include Terms and Conditions in RFP” Best Practices in State & Local Government Contracting Module 4: Request for Proposals (RFP) Provisions Best Practice “Include Terms and Conditions in RFP” 2006 Conformance = 100% 2015 Conformance = 100% Avoid contractors proposing their terms and conditions (Ts & Cs) Avoid negotiation of Ts & Cs not previously seen by the government Verification: This is a “common sense” approach to preparing solicitations.

“Open Proposals in Confidence” Best Practices in State & Local Government Contracting Module 4: Request for Proposals (RFP) Provisions Best Practice “Open Proposals in Confidence” 2006 Conformance = 32% 2015 Conformance = 70% Proposals are Subject to Negotiation Proposal Particulars Should Not be Revealed to Competitors Verification: ABA’s 2000 Model Procurement Code for State and Local Governments §3-203(4)

“Describe Confidential Treatment of Proposals in RFP” Best Practices in State & Local Government Contracting Module 4: Request for Proposals (RFP) Provisions Best Practice “Describe Confidential Treatment of Proposals in RFP” 2006 Conformance = N/A 2015 Conformance = 93% Transparency Avoid having prospective contractors show-up for nonexistent public opening Verification: High conformance percentage

“Use One-Page Format for Variable Information” Best Practices in State & Local Government Contracting Module 4: Request for Proposals (RFP) Provisions Best Practice “Use One-Page Format for Variable Information” 2006 Conformance = 23% 2015 Conformance = 87% Avoid Errors Populate Contract Management Database Avoid Signing a “Blank Check” Verification: High Conformance Percentage Plus Improvement Trend

Contract Number √ One Below Contract Start Date Contract End Date Following Date On Receipt of Notice of Award (NoA) Calendar Days Following NoA Upon Execution by Agency Calendar Days Following Execution Agency Dept. FOB Point Terms Price Basis (√ One of the Five Following Blocks) Price Fixed Annual Monthly Hourly As Described in SoW Documents Attached & Incorporated (√ All Applicable) SoW Insurance Provisions Terms and Conditions Contractor Name Agency Name Street Address City/State/ZIP Hereinafter referred to as “Contractor” Hereinafter referred to as “Government” Contractor Signature Agency Signature Printed Name Printed Name

“Prohibit Cost-Plus-a-Percentage-of-Costs Contracts” Best Practices in State & Local Government Contracting Module 4: Request for Proposals (RFP) Provisions Best Practice “Prohibit Cost-Plus-a-Percentage-of-Costs Contracts” 2006 Conformance = 5% 2015 Conformance = 77% CPPC contracts are not permitted in many jurisdictions They encourage contractors to spend excessively Can seriously damage government’s spend rate Verification: ABA’s 2000 Model Procurement Code for State and Local Governments includes §3-501, Types of Contracts and FAR, Subpart 16.1, Selecting Contract Types

“Specify Unallowable Costs in RFP” Best Practices in State & Local Government Contracting Module 4: Request for Proposals (RFP) Provisions Best Practice “Specify Unallowable Costs in RFP” 2006 Conformance = 5% 2015 Conformance = 63% Government may reimburse costs not passing the headline test Allows government to disallow reimbursement of fines, entertainment, certain advertising and other costs that most government employees and taxpayers may not consider appropriate Verification: The ABA’s 2000 Model Procurement Code §7-101, Cost Principles Regulations Required, does not outright require specifying unallowable costs, but supports it. FAR has an entire section devoted to unallowable costs.

“Use Imperative “Shall” in Scope of Work” Best Practices in State & Local Government Contracting Module 4: Request for Proposals (RFP) Provisions Best Practice “Use Imperative “Shall” in Scope of Work” 2006 Conformance = N/A 2015 Conformance = 87% Use terminology best compelling contractor performance Ensure that responsible party for every task is defined in scope of work Have scope of work reviewed by knowledgeable contracting professional Verification: Bays, Alfred W., American Commercial Law Series, Chapter 8, “The words employed will be construed most strongly against the party using them.” ABA’s 2000 Model Procurement Code for State and Local Governments reflects the following definition: “Shall denotes the imperative.”

“Define Responsive Proposal in RFP” Best Practices in State & Local Government Contracting Module 4: Request for Proposals (RFP) Provisions Best Practice “Define Responsive Proposal in RFP” 2006 Conformance = N/A 2015 Conformance = 60% Promotes transparency Deters protests regarding responsiveness of proposals Clarifies rules pertaining to contractor selection Verification: Most RFPs state award will be made to responsible company submitting responsive proposal offering best value to the government

“Define Responsible Contractor in RFP” Best Practices in State & Local Government Contracting Module 4: Request for Proposals (RFP) Provisions Best Practice “Define Responsible Contractor in RFP” 2006 Conformance = N/A 2015 Conformance = 47% More critical than defining “responsive” because nonresponsive proposals are normally negotiated Companies failing to meet criteria for “responsible” can have proposal summarily rejected If not defined in RFP, contractors may protest award Verification: The ABA’s 2000 Model Procurement Code §7-101, Responsibility of Bidders and Offerors, contains a commentary indicating that a contractor requires financial ability, resources, skills, capability, and business integrity to be considered a responsible contractor