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Procurement Law at a Glance: Guidelines for Avoiding Common Procurement Pitfalls

By Kiersten Murphy, for Gallagher & Kennedy, P.A.

Although each public project is unique, the public procurement process follows some consistent ground rules.  With those rules in mind, below are a few guidelines – based on recurring, “hot button” issues – for businesses interested in government contracting.

Before Responding to a Solicitation:

Public records are a great resource in the procurement process.  Consider making a public records request before submitting your response.  Request similar contracts, proposal responses and pricing.  This information often provides critical insight into the government’s existing business relationships, and can be useful as you structure your response.  (On the flip side, know that your proposal and pricing will also be available for public inspection after the procurement is complete).

Additionally, be aware that state law and many localities’ rules require that you raise any apparent issues with the solicitation or procurement process before submitting your proposal.  For example, if you notice flaws in the specifications or unfairness in the pre-submission process, you must challenge those issues before submitting your response.

Preparing Your Response:

The solicitation (IFB, RFP, RFQ) is the operative document in any public purchase.  You should carefully review it and strictly comply with its terms.  Late submissions (even one minute late) are rejected; and, submissions failing to meet space and formatting requirements, or otherwise failing to respond to the solicitation’s requests, risk being rejected.

In preparing your response, you may have questions requiring the government’s clarification.  But use caution – any communications about the solicitation must follow the government’s clarification and communication processes.  You must refrain from improperly contacting government officials about the solicitation.  The State and many localities prohibit/limit a contractor’s “lobbying” or otherwise communicating with officials during an ongoing procurement.  Failure to faithfully adhere to the letter and spirit of those restrictions can result in disqualification.

The government frequently amends solicitations after issuance.  Many government entities notify contractors electronically, or post amendments to their websites.  Ultimately, it is critical to stay informed about, and be responsive to, amendments.

 After Contract Award:

Usually, disappointed bidders can challenge, or “protest,” a contract award.  And, while rules vary by government entity, all share common elements – they move quickly, have short, pressing deadlines, and require experience to spot important issues.

We’ll address specific “protest” issues (both for successful contractors defending awards, and for unsuccessful contractors challenging the procurement process) in future articles.  For now, the critical takeaway is that protesting a procurement decision is a remedy available to interested parties, and is therefore an incentive to carefully follow a solicitation’s rules/requirements (to defend challenges to your award), and to monitor irregularities in the process (to articulate a challenge to another’s award).

LEG_Public Procurement HeadshotKiersten Murphy is an Arizona attorney and member of the Public Bidding & Procurement team at Gallagher & Kennedy – 2575 E. Camelback Rd., Ste. 1100, Phoenix, Arizona 85016 – 602-530-8000.

Disclosure:  This article should not be construed as legal advice or relied upon as a substitute for legal counsel.