Negotiations or Clarifications - Do you know the difference?

Size: px

Start display at page:

Download "Negotiations or Clarifications - Do you know the difference?"

Hugh Stanley Houston
5 years ago
Views:

1 Government Procurement Services GPS - Directing You to Success This newsletter is published on a monthly basis to provide relevant information to government purchasing and contracting professionals regarding public procurement and contracting topics. Hope you enjoy! In This Issue May 2016 Training Schedule Negotiations or Clarifications - Do you know the difference? Question of the Month Current Training Schedule Negotiations or Clarifications - Do you know the difference? In a recent class, we had an interesting discussion on the difference between negotiations, discussions and clarifications when using the Competitively Sealed Proposal process. I thought it would be useful to provide additional information on this subject as a newsletter article. I personally tend to use the terms negotiations and discussions interchangeably. However, the Federal Acquisition Regulations (FAR (d)) makes a distinction between negotiations and discussions. It states "negotiations are exchanges...between the Government and offerors, that are undertaken with the intent of allowing the offeror to revise its proposal...when negotiations are conducted in a competitive acquisition, they take place after establishment of the competitive range and are called discussions." According to the American Bar Association (ABA) Model Procurement Code 3-203: Discussion with Responsible Offerors and Revisions to Proposals - as provided in the Request for Proposals, and under regulations, discussions may be conducted with responsible offerors who submit proposals determined to be reasonably susceptible of being selected for award for the purpose of clarification to assure full understanding of, and responsiveness to, the solicitation requirements. Offerors Workshop Prices: $295 (1-day) $490 (2-day) Group Discounts Available Essentials of Contract Management Sept , 2016 Ethics in Contracting July 13, 2016 Sept. 12, 2016

2 shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals, and such revisions may be permitted after submissions and prior to award for the purpose of obtaining best and final offers. In conducting discussions, there shall be no disclosure of any information derived from proposals submitted by competing offerors. There must be a cut-off for the submission of revised proposals and final offers. Prices, technical solutions, unique technologies, innovative use of commercial items, design, construction, or operating techniques, or other aspects of proposals submitted by one vendor must not be disclosed to competing vendors. Safeguards against abuse in the conduct of negotiations must be strictly observed to maintain the integrity of the process. Contract negotiations shall be directed toward: Making certain that the firm has a clear understanding of the scope of the work, specifically, the essential requirements involved in providing the required services. Determining that the firm will make available the necessary personnel and facilities to perform the services within the required time. Agreeing upon compensation which is fair and reasonable, taking into account the estimated value, scope, complexity, and nature of the required services. Negotiations are not intended to correct deficiencies as this could be determined to be technical leveling. Technical leveling is helping a respondent to bring their proposal up to the level of other proposals through successive rounds of discussion, usually by pointing out proposal weaknesses. In the following scenarios - decide if you think the situation is 1) negotiation 2) clarification 3) technical leveling in regard to a government issued Request for Proposal (RFP) for flight training on various helicopter airframe models with a specific number of required instructors for each model: Fundamentals of Public Purchasing October 17-18, 2016 December 6-7, Negotiation Skills July 14, 2016 September 13, Procurement Management Academy June 29-30, 2016 Nov , 2016 Purchasing 101 for Everyone June 1, 2016

Scenario #1 - Contact the vendor to determine that the training they provide does include a specific helicopter airframe model as it was not clear in the RFP?

3 Scenario #1 - Contact the vendor to determine that the training they provide does include a specific helicopter airframe model as it was not clear in the RFP? Scenario #2 - Negotiate with the vendor to include instructors for airframe models that were not mentioned in the RFP and allow for five fewer instructors than called for in the RFP at a significant savings to the agency. Scenario #3 - Negotiate with vendors for a better price than was originally submitted in the RFP and vendor provided more instructors than called for in the RFP. See answers below after Question of the Month. Question of the Month QUESTION: Can you accept an electronic signature on a contract or do you have to have an "original" signature? ANSWER: That answer really depends on where you work. See several examples below: October 25, 2016 November 2, 2016 San Antonio Specification Writing June 2, 2016 October 26, 2016 November 3, 2016 San Antonio Using Request for Proposals October 4-5, 2016 Dec , 2016 Quick Links The State of Texas Contract Management Guide (Page 94) states: "Original signatures by those in authority to contract are the usually accepted norm through which a contract becomes binding. There may be instances where time considerations dictate the need to accept a faxed signature as evidence a respondent accepts the terms of a contract. Additionally, it is possible that an or a chain of s that make it clear a party accepts the terms of a contract can be enforceable. Faxed signatures or s should always be followed up with original signatures." The State of Texas Health and Human Services Contract Management Handbook (Page 32) states: "Contract

4 managers can accept records with valid signatures that are transmitted electronically through: * Fax or ; and * Scanned documents attached to s. A signed contract record is electronically submitted through the transmittal process of ing scanned documents or faxing documents, which can include an executed contract and documents that are incorporated by reference." According to NOLO.com: "Electronic contracts and electronic signatures are just as legal and enforceable as traditional paper contracts signed in ink. Federal legislation enacted in 2000, known as the Electronic Signatures in Global and International Commerce Act (ESGICA), removed the uncertainty that previously plagued e-contracts." 15 U.S. Code General rule of validity (a) In general, notwithstanding any statute, regulation, or other rule of law, with respect to any transaction in or affecting interstate or foreign commerce- (1) a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and (2) a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation. As I am not a lawyer and don't give legal advice, I recommend that you contact your legal department. Even if the practice is legal, your entity may have a policy that requires something different. ANSWERS TO NEGOTIATIONS OR CLARIFICATIONS ARTICLE ABOVE: Scenario #1 - Contact the vendor to determine that the training they provide does include a specific helicopter airframe model as it was not clear in the RFP? Answer: This is a clarification as it intends to clarify only - no modifications to the RFP. Scenario #2 - Negotiate with the vendor to include instructors for airframe models that were not mentioned in the RFP and

allow for five fewer instructors than called for in the RFP at a significant savings to the agency. Answer: This looks like technical leveling as they included information that was outside of the RFP.

5 allow for five fewer instructors than called for in the RFP at a significant savings to the agency. Answer: This looks like technical leveling as they included information that was outside of the RFP. Of course, additional review would be required to make a final determination. Scenario #3 - Negotiate with vendors for a better price than was originally submitted in the RFP and vendor provided more instructors than called for in the RFP. Answer: This is negotiation. Governmental entity received better pricing and vendor provided additional instructors (value added). Hope to see you in a workshop soon! Janet Hasty, CPPO, CTPM Government Procurement Services (888) office (512) fax Government Procurement Services is a Historically Underutilized Business (HUB) and a Woman-Owned Business Enterprise (WBE).

New Jersey LFN Packet Check List

New Jersey LFN Packet Check List New Jersey LFN 2012-10 Packet Check List Contract Documents Screenshot Page from solicitation that indicates Lead Agency and issuance of solicitation on behalf of themselves, U.S. Communities and agencies