1. 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

2. 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

3. “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.

4. “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.

5. “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.

6. “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.

7. “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)

8. “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

9. “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

10. 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

11. “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

12. “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.

13. “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.”

14. “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

15. “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