RFP or Invitation to Compete, What's the Difference?
By Bill PrestonLawyers will answer that an Invitation to Bid is the Judges’ disciplined, fair and equal competitive procurement process, while a Request for Proposals (RFP) is a self-interested negotiation process where both the procurer and the provider can, short of deceit, do and say as they please. So, for authors of procurement documents the choice becomes, what’s your poison? Choose an Invitation to Bid by preparing a prescriptive design spec in the absence of the wisdoms of a quality constructor and hope that the owner can force the low priced bidder to complete quality on time, or choose an RFP and negotiate both a 3P design for the owner’s requirements while hoping that the price is near market values. Obviously, all procurers would prefer the best of each without the risks – a 3P design constructed as quick and inexpensive as a constructor will low ball. To achieve this ideal, for the past 15 years or so spec writers have tried to write hybrid procurement terms which seek to minimize the Courts’ opportunity to intervene, but yet compel the provider of construction services to price compete toward the lowest possible to get the award. And, as you might expect, the parties frequently end up spending time, money and reputation before a Judge fighting the issue: Are their hybrid terms an RFP and thus the Court cannot second guess decisions, or are they a competitive bid where the Court will impose its rules? To give you a feel of when the Judges will jump in, I’ll review two cases, one from Nova Scotia and the other from BC.
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