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Contract A - Avoid or Not

Posted 6/15/2021

A negotiated RFx (NRFx) is a tool commonly used to mitigate procurement risk, increase procurement flexibility, and avoid “Contract A”. This strategy deserves a closer look.

If a NRFx is a hammer, not every procurement is a nail.  Choice of procurement strategy is best made early with reasoning documented.

As always, nothing in this article is legal advice.

The following questions may be helpful to choosing a procurement strategy:

Do you have the organizational mandate through policy and procedures to avoid Contract A?

Are the factors to be considered (evaluated criteria) subjective or decisive?

Is the procurement complex requiring unknown but creative solutions, or is it well specified with price being the major determinate?

What resources/skills can you bring to a negotiation process?

Assuming you have decided to avoid “Contract A”, a partial list of questions:

Will potential proponents be involved with development of the NRFx?

Which negotiation process will be used – consecutive or concurrent?

If consecutive process used, how will you determine with whom to commence negotiation?

If concurrent process used, how will this be implemented?

Do the processes proposed conform to contract law and the trade agreements?

What requirements of the contractor are important to you?

What process could be applied to address an incomplete response?

What will be negotiated?

Should an independent process/fairness monitor be engaged?

Avoiding “Contract A” can reduce risk and can lead to better solutions, however we professionals need to be prepared to put in the effort and have the skills and resources to ensure the process is transparent and fair. We need to state what our intentions are, how we will get there and once we have the responses, we must follow the processes we stated in the NRFx.