The solicitation process Posting, evaluating and awarding

Posting requirements Gov’t Code §2155.083 describes Electronic State Business Daily (ESBD) posting requirements Any procurement over $25K must be posted in the ESBD. Posting must include: Brief description of goods/services Date for submission of bids/proposals Estimated quantity of goods/services to be procured If applicable, previous price paid by the state for the same goods/services Estimated date the goods/services will be needed State employee responsible for the bid and their contact information

Posting time If the agency provides “the entire bid or solicitation package” in the posted materials, the solicitation notice can be posted for 14 calendar days. If bidders/respondents must go elsewhere to obtain some or all of the material necessary to respond to the bid, then the package must be posted for 21 calendar days. Postings may only be placed on ESBD by authorized purchasers and registered agents. IF THE POSTING TIMES ARE NOT MET . . . THE CONTRACT/AWARD IS VOID. Gov’t Code §2155.083(j) Note – 2155.083 does not apply to state universities.

Other posting types/requirements Gov’t Code §2156.002 gives notice requirements for IFBs – seven days in a “newspaper of general circulation in the state.” Best not to use this unless you’re sure §2155.083 does not apply. “Consulting services” of $15,000 or more ($25K for universities) under Gov’t Code Ch. 2254, subchapter B must be published in the Texas Register 30 days prior to “entering the contract”. Gov’t Code §2254.029 Texas Counties post pursuant to Tx. Local Gov’t Code §§262.025 – 262.0255: published in a “newspaper of general circulation in the county” for 14 days. Cities posting requirements governed by Tx. Local Gov’t Code §252.041: notice must be “in a newspaper published in the municipality” for 14 days. If no such newspaper, then it must be posted at City Hall for 14 days. Universities’ notice requirements much less specific – under their own rules or “as directed by the board” for construction projects (Ed. Code §51.783(e)).

CentralIZED Master Bidder’s List The CMBL is a database of vendors registered to provide specific goods or services. Procurement Manual states that “the CMBL is to be used for all available procurement processes . . . to the fullest extent possible by state agencies that make purchases exempt from CPA purchasing authority” and “must be used for all procurements subject to CPA’s procurement authority” unless exempt under other law. With approval from their E.D. agencies may supplement the CMBL to enhance competition where using only the CMBL “is not in the best interests of the state,” for example, some showing that supplementation will increase competition, or increase number of HUB bidders.

Receiving Bids/proposals Be careful to make sure proposals are logged in and tracked to ensure compliance with submittal timelines, etc. Review solicitation package for all required elements – make sure the HUB Subcontracting Plan is included if one was required. New HUB rules allow minor deficiencies (absent signature, for example) to be corrected after submission.

Evaluation The time to arrive at an evaluation strategy is actually well before bids are received, possibly even before the RFP is posted. Items to consider: Is it a complex task to determine whether the bidders have met the published specifications and requirements? Are there components where the evaluation criteria require some exercise of judgment to determine “best value”? Are there multiple users/customers whose opinions could matter as to which product or service provider should be selected? If the answer to one or more of these questions is “yes”, you might consider a team evaluation approach.

Evaluation teams Best approach is to pick a manageable number of evaluators (more than two, less than ten). Each member of the team should be required to sign a non-disclosure agreement (“NDA”). The NDA can be combined with the required SAO nepotism form for signature. Set up the first meeting of the evaluation team - make sure you get NDAs from all evaluators before they leave with bid materials. At the first meeting, give evaluators guidance on how to perform their review, and “do’s and don’ts” of being an evaluator.

Evaluation team scoring Prepare a scoring matrix that will give a fair comparison of the RFP/RFO requirements and the bidders’ strengths and weaknesses, and make sure the matrix matches up well with what you said in the RFP/RFO about how bidders would be scored. As part of the kickoff meeting, walk the evaluators through the scoring matrix, give them your expectations for scoring, and answer questions. Give the evaluators a timeframe when their scoring is due, then collect and tabulate the scores. Make sure to track the response packages to ensure no gaps in the process. If there are statistical outliers, you may want to consider a “recalibration” meeting.

BAFO, Barfo, and so on… It may be beneficial to the process to ask vendors to submit a “best and final offer” or BAFO. It helps to mention the possibility of a BAFO in the RFP/RFO, so vendors are not surprised when they get one. The BAFO should only be on price. If you allow modifications/resubmission on technical criteria, you may not be comparing apples to apples on the technical scores. Give vendors a specific timeframe and parameters for the BAFO responses. It may be necessary in rare cases to ask for “best and really final offers” or BARFO. Generally we have only done this when we decide to drop certain criteria from the solicitation and we want to gauge how much that would save.

Exceptions & assumptions Respondents will often take “exceptions” to parts of the bid/proposal specifications or the terms or conditions of the solicitation. Respondents may also make “assumptions” about how the work is to be carried out in their response. These issues must be worked out prior to award; otherwise you may not be comparing the respondents on equal proposals. If an exception or assumption is fundamental enough that it affects how respondents structure their proposal, you may need to issue a new solicitation to allow ALL respondents to clarify their proposals consistent with the new published specifications.

Tie bids & preferences In the unlikely event that there are two or more bids that are equal after all the evaluation and price scoring, the foremost method for breaking these ties is through use of preferences. Preferences are listed in statute and discussed at length in the Procurement Manual. There is even a priority for which preferences take precedence over others. Note that while some preferences are product-type specific, and affect what you solicit for, others are vendor-specific and those are generally used to break tie bids.

TPASS Preference attachment

Award Different philosophies for award. In TPASS, all award letters contain any final negotiated terms that differ from the RFP. As specified in the RFP, the “order of priorities” listed in the award letter controls over everything else, so any agreed exceptions, negotiated points and the like will be found in the award letter only. Award letters must always be signed by the appropriate authorized person (CTPM or ED if required). Always check vendor status against EPLS before making an award. It is rare to get a “hit” but it has happened. EPLS has been difficult lately, but back up and operating currently.

Questions? David Duncan – Deputy General Counsel Tx. Comptroller of Public Accounts (512) 463-9482 Manuel Perez, CTPM – Technical Lead, Statewide Procurement (512) 463-2469