Why it's important to draft RFPs clearly

RFP CREATOR™ (Canadian Edition - 2006)
The most complete tool for drafting RFPs with over 1,000 legal clauses

Why it’s important to draft RFPs clearly

Few tools have been available to help purchasing professionals draft Requests for Proposals; Yet a properly drafted RFP is essential to reducing legal risks and running a successful competitive bidding process.

Following a 1981 Supreme Court of Canada decision known as the Ron Engineering Case, competitive procurement, whether by way of an RFP, RFQ, Invitation to Tender or otherwise, can have serious legal ramifications. The Court ruled that by submitting a compliant bid to the Owner, the bidder and the Owner may become contractually bound by all the terms of the bid documents, including those provisions regarding irrevocability, amendments, timetable etc. The Court called this "Contract A" which is sometimes known as the "bidding contract".

The bidding contract requires Owners not only to follow the terms of the procurement documents they have issued but also to treat bidders fairly and evenly. But, since Owners prepare the documents, they can structure the documents to give them the flexibility they need.

A solicitation document drafted using clear language can reduce ambiguity, the risk of implied terms and may prevent proponents from successfully protesting the award or process.

Tips for using RFP Creator

RFP CREATOR™ provides the tools an Owner needs to create a solid first draft of an RFP. The newly released CD-Rom offers a flexible menu of sample RFP clauses for procurement professionals to pick and choose from when drafting procurement documents.

RFP Creator isn't a substitute for proper legal advice

It's still crucial to seek legal advice when drafting to ensure an Owner’s intentions are reflected in the final documents. For example, an Owner may not want to create the "bidding contract," and may unwittingly do so by using certain clauses without counsel. Owners need to be unequivocal on whether or not they intend to enter into a "bidding contract" and draft the documents accordingly.

Legal language is complex by nature. Clauses under the headings "Negotiation" and "Final Contract," for example, can dramatically change the nature of the process and should be clearly understood by the drafter. The use of the words "shall", "must" or "may" can also impact the Owner's obligations dramatically. These are just some of the fundamental issues an Owner should discuss with legal counsel before drafting begins.

Other typical difficulties that an Owner may encounter after issuing the RFP are mistakes, missed deadlines, defective (non-compliant) proposals, and the exercise of discretion by the Owner. An expert with an appreciation of the details of competitive bidding/procurement law and court decisions can inject clarity in what is undoubtedly a complex process.

The Materials are provided for informational purposes and are not legal advice. It is your responsibility to ensure any Materials you use or modify for your own needs are reviewed by a lawyer. THE CONTENTS ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND. YOUR USE OF THE MATERIALS IS ENTIRELY AT YOUR OWN RISK.