Legal Issues in Competitive Sealed Proposals
The ABA Model Procurement Code approach to competitive sealed proposals has been adopted by many public entities, yet approaches to proposal “responsiveness” vary. Likewise, public entities use different terms like “discussions” and “negotiations” to describe the communications permitted between the entity and offerors after proposal receipt and before award, yet the terms apply relatively generically in most situations. Regardless, the exchange of information can help both parties, and the offeror can better understand the government’s requirements while the entity can better assess the offeror’s proposal. But the exchanges with offerors in the competitive range must be fair, with equal opportunities extended for proposal revisions. Evaluation of proposals is a common area of bid protest, and the touchstone is reasonableness. Traditionally led by the procurement professional, post-award debriefings of unsuccessful offerors are common, and finally, depending on the procurement law’s requirements, post-award formalization of the contract can unwittingly wander into areas that appear unfair to competing offerors when the RFP is materially changed.