In the humble opinion of the doctor, one of the best presentations at the Fourth Annual International Symposium on Supply Chain Management was Paul Emanuelli‘s presentation on Key Concepts for Major Procurements.
Most of the time in procurement, you’re procuring orders of direct materials, indirect materials, MRO, or services – basic acquisitions which, with a few notable exceptions, will not break the bank if something goes wrong. However, sometimes your purchases are bigger – much, much bigger. For example, a new office building. A new fleet of aircraft. New heavy machinery. These procurements, if not handled properly, could, literally, break the bank, and the business, if not handled properly – possibly even before the law suits start flying.
The very nature of major procurements implies that legal counsel should be involved from day one – not brought in during final negotiations. When you consider Mr. Emanuelli’s checklist for empowering major procurements:
- The Role of Lead Legal Counsel
- Expanded in Major Procurements
- Embedded in a Multidisciplinary Team
- Multi-Faceted Legal Advice
- Internal Governance
- Awareness of Internal Governance Issues
- Approvals Roadmap
- Decision Making Framework
- Roles and Responsibilities
- Distinguishing Internal and External Audience
- Plans and Strategies
- Providing Strategic and Tactical Advice
- Distinguishing Process from Purpose
- Building a Business Plan
- Developing a Procurement Strategy
- Selecting the Appropriate Format
- Critical Decision Point
- UN Model Procurement Law
- Three RFP Formats
- Selection Depends on Circumstances
- Impact of Pro Forma Agreement
- No Negotiations Calls for Certainty of Terms
- Criteria for No Negotiation Format
- Major Projects Require Flexibility
- Critical Project Details
- Front-Line Considerations
- Disclosure Duties
- Reconciling Requirements
- Coordinating Concurrent Drafting
- Horizontal Integration
- Tailoring a Legal Agreement
- Developing a Negotiating Strategy
… it quickly becomes obvious that legal counsel is crucial from day one.
In order for a major procurement project to succeed, roles and responsibilities must be hammered out from day one. This is where good legal counsel can be of significant assistance. They can help you identify all internal stakeholders and create a solid decision-making framework and governance structure to provide direction to the cross organizational procurement team during all facets of the project.
Solid legal counsel can also help you distinguish process from purpose, separating the means from the ends, which assists you in drafting documentation that clearly differentiates between the procurement process rules that lead to the selection of a preferred service provider and the objectives that should be achieved under the contract once awarded. Unclear language alone has been the basis for a slew of lawsuits north and south of the border, especially in the public sector, and well drafted documentation up front effectively mitigates your risk.
Legal counsel can also assist in the creation of a solid business plan at the beginning of the project as well as the definition of a customized procurement strategy tailored to the project, including the selection of an RFP process and associated drafting. This will also help prevent problems down the road.
When it comes to RFPs, you essentially have three options, as recognized by the UN Model Procurement Law:
- No-Negotiation RFP
invitation to tender style commonly used in the public sector
- Simultaneous Negotiation RFP
allows the purchaser to negotiate with all bidders
- Consecutive Negotiation RFP
allows the bidder to negotiate with the highest ranked bidder and proceed down the ranking until an agreement is reached
The No-Negotiation RFP is one of the strictest formats and requires absolute certainty of terms in order to prevent problems down the road. Considering that it needs to:
- include all of the general governing terms and conditions;
- incorporate all of the purchaser’s business and technical requirements;
- enable bidding based on the same set of common assumptions regarding performance terms and conditions; and
- enable contract formation without recourse to any post-bidding negotiations that materially change the terms contained in the tender call;
I would submit that you should never embark on any significant no-negotiation tender without the advice of legal counsel from the beginning. In summary:
The complex and multi-faceted nature of major procurement projects requires legal counsel to play an intensive role in the project team. By integrating into that team and understanding the broader context within which these project operates, legal counsel can be a key contributor to the success of a project. To increase their chances of success, project organizers would be wise to retain this key player at the early stages of their major initiatives.
For those of you in the public sector, Paul Emanuelli has recently produced a textbook on Government Procurement and, even though it was written from a Canadian perspective, I would suggest that the advice is sound whether you are in Canada, the US, the UK, Australia, etc. Paul also produces a free quarterly National Tendering Law Update which can be electronically subscribed to on request to paul<dot>emanuelli<at>sympatico.ca.