Plain LanguageGovernment Solicitations - article one
Have you ever looked at a government solicitation document, and had trouble figuring out what the “rules” governing the process means? The rules are usually four or more pages that can be difficult to understand for the average small business owner. Maybe you’re one of those diligent and careful people who has had your own lawyer decipher this language, but I’m willing to bet that many of us either try to decipher it ourselves or don’t read them at all. For others, these “rules” may be one of the reasons that you don’t participate in government solicitations.
I’m not a lawyer, but I did spend 27 years with the BC provincial government, mostly in procurement, and am very familiar with the solicitation templates currently used by the BC government. The lawyers wrote the solicitation “rules”, but it was my job to understand how to implement them in practice. In this article, I’ll explain in plain language how I interpret one of the common clauses that you can find in many public sector solicitation documents.
Note: This article is intended for general information only, and is not, nor should it be treated as, legal advice. Readers should consult with their legal counsel about anything stated in this article if they intend to rely upon it.
Acceptance of Terms and Conditions
Many government solicitations will include something like the following:
“Submitting a proposal indicates acceptance of all the terms and conditions set out in the RFP, including those that follow and that are included in all appendices and any Addenda. A proposal must be signed by a person authorized to sign on behalf of the Proponent with the intent to bind the Proponent to the RFP and to the statements and representations in the Proponent’s proposal.”
Understanding what this clause means is key to the solicitation process. I have personally seen many instances where it’s clear that the vendor who is offered the contract didn’t know how this clause impacts the contract they would be signing. This can sometimes result in the successful vendor and government being unable to finalize the contract; a lot of work on both sides for no contract!
So, in plain language, here’s my interpretation of what this clause means. By signing and submitting your response to the solicitation, you are agreeing to the process described, whether it’s in the body of solicitation document, in an appendix to the document, or in the addenda that are issued with it.
The biggest issue with this clause is usually the contract that the successful vendor is expected to sign. If the contract clauses are included (which they usually are as one of the appendices), you are agreeing that if you are successful, you will sign a contract that includes them all, without any substantive changes. If you are the successful vendor in a solicitation, don’t have your lawyer edit the clauses in the contract and expect the government buyer to agree to any of those changes (and yes, this has happened). Remember that you have already agreed to them, as part of your submission.
But why is the public sector so strict about this? Aren’t negotiations part of any new contract?
Public sector entities write their own contract clauses with a view to protect themselves. The usual preference is not to change these clauses, as this may create more risk than they’re willing to assume. But there is another reason for this “inflexibility” – the need to make sure that everyone is being treated fairly. It is difficult for government to defend the outcome of a solicitation if the “rules” apply to everyone except the successful vendor. Allowing such changes can create a risk of an unsuccessful vendor complaining that they would have changed their submission if they had known such a change was possible.
What happens if there’s something in the solicitation document that you cannot agree to follow? Don’t wait until after closing to let the government buyer know! You can ask the government contact to change these showstoppers while the solicitation is open, following the process described for asking questions. But be reasonable and specific when making such requests – i.e. explain why you cannot agree to the clause and suggest alternative language that is acceptable to you. Don’t ask for changes that are not critically important, as the government buyer may have to connect with their corporate bodies (e.g. their legal or risk departments) to find out if your requested changes can be accepted. If you request too many changes, there may be insufficient time for these reviews.
The government buyer is likely going to respond in one of three ways to these requests:
- The requested change is not possible, in which case you will have to decide if you will continue to participate in this solicitation.
- The buyer won’t agree to the language you have suggested, but is willing to negotiate changes to the specific clause with the successful vendor; this does not create an issue with fairness if all vendors are aware that specific clauses could be changed.
- The buyer agrees to make the change, either using the wording that you suggested or their own wording.
And finally, remember that if you request changes while the solicitation is open, your request and the answer given will be made available to all vendors participating in the solicitation. This will not be a private negotiation between just you and the government buyer; whatever decision the government buyer makes applies to all participating vendors.
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