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RFP or NRFP?

Posted 5/3/2022

That is the strategic question. Both are requests to supply something, both will set out a process to select the supplier, both incur procurement risk, and both create obligations on the tendering party. So, what are the differences?

The RFP will create a Contract “A” meaning the owner plans to purchase a product or service that is substantially the same as that stated or specified in the RFP. According to Contract “A” terms between the owner and all respondents, a non-conforming proposal must be rejected. Proponents could be held to deliver on their proposal. Procurement risk includes determination of what may be a conforming proposal or not. “Substantially the same” has been and will continue to be addressed in the courts. Industry specific associations could offer guidelines. Proceed with caution.

The NRFP may or may not create a Contract “A” situation. Just because the NRFP states that a Contract “A” will not be created does not necessarily make it so. The owner is obligated to follow the processes for negotiation set out in the NRFP. Fairness and transparency are paramount. Proponents are not always bound to deliver on their proposal and may walk away from negotiations at any time prior to contract signing. Case law will be made, proceed with caution.

In my opinion, the difference between an RFP and a NRFP is determined by the specifics of the request. The RFP will set out requirements, specifications, and be evaluated on criteria additional to price. The NRFP should set out an end state or objective and invite proposals to negotiate how to achieve that. Negotiations may be concurrent or consecutive as set out in the request. Choose wisely.

The contents of the procurement request determine whether the request is a RFP or NRFP, not the label. Whether RFP or NRFP owners should conduct themselves with integrity treating all tenderers equally. The legal environment around NRFP’s is continuing to evolve.

The information stated here is the opinion of a seasoned procurement strategist, it is not legal advice.