Request for Information RFI 1 Request for Information

Request for Information (RFI) 1

Request for Information (RFI) An RFI can take two forms: 1. It can generally describe a procurement an agency is considering doing and simply ask vendors if they likely would respond Nothing is asked for or expected except an indication of interest The RFI would specifically state that vendors should not submit prices, proposals, etc. – The State likely would not proceed with the procurement if no responses were received 2

Request for Information (Cont’d) 2. The State can also issue a RFI to ask vendors to submit – Generic literature describing their involvement in the area of the proposed procurement – Suggestions of what the State should include or avoid in the procurement being considered – But, the RFI would instruct vendors NOT to provide detailed proposals or prices of any kind 3

Request for Information (Cont’d) An RFI is not mentioned under Maryland’s procurement law or regulations The closest thing to a RFI is a Request for General Expressions of Interest (RGEI) – RGEIs only apply to noncompetitive negotiated procurements of human, social or educational services under 21. 14. 01. 04 & SF & P 13 -106 – These types of procurements are limited to foster care placements done by DHR & DJS So even RGEIs rarely occur 4

Request for Information (Cont’d) But the fact that an RFI isn’t mentioned in Maryland procurement law also means it isn’t prohibited Especially since RFIs are mentioned in the State Government Article of the Annotated Code, in section 15 -508 (b) (2)) dealing with Ethics related to procurement So we will continue to describe and the advisability, or non-advisability of using an RFI 5

Request for Information (Cont’d) Issuing an RFI might be appropriate when a procurement under consideration hasn’t been done before and the agency isn’t sure what it should ask for (specify) So, before trying to write specifications the agency – – – Publishes an RFI in e. MM which it directly sends to vendors it believes do the subject of the procurement Gets responses Then either Writes the specifications; or, May abandon the procurement if there are no responses 6

Request for Information (Cont’d) But RFIs are generally not recommended for Maryland procurements, because: – Vendors that assist with the preparation of specifications are barred from submitting a bid or proposal for that procurement under the State Ethics law 15 -508 of the State Government Article – But, more importantly, RFIs are rarely, if ever necessary 7

Request for Information (Cont’d) RFIs should never involve vendors: – Submitting proposals (As already mentioned) – Making presentations, or product demonstrations An agency should never have an evaluation committee review vendor responses If done improperly, an RFI might resemble a procurement in everything but name – Without the rules and procedures required for a procurement – Which may mean that any result is subject to being challenged and invalidated 8

Request for Information (Cont’d) A properly constructed RFI should be issued to two or more vendors, better yet, all anticipated vendors, and vendors should properly respond, in writing to avoid Ethics issues – Vendors providing generic information or suggestions are not construed to be assisting with specifications 9

Request for Information (Cont’d) But there is a danger that: – An agency will inadvertently ask for too much information; or, – A vendor will provide what amounts to a detailed proposal And, if the agency uses this improper information in the solicitation, the vendor that provided the information is disqualified from participation in the procurement Not using an RFI avoids this risk 10

RFI ALTERNATIVES 11

RFI Alternatives (Listed in order of preference) Don’t include unnecessary or overly detailed specifications in your solicitations – Don’t specify Use publicly available information Public Forums Transcribe one-on-one meetings with potential vendors 12

The Procurement Method Matters Whereas for evaluated procurements (CSP & maybe MSSB) it is desirable to avoid or minimize specifications to afford the flexibility to determine the best solution to the problem or need, including price and the technical offering For sealed bid procurements (CSB) it is necessary to state exactly what bidders must do, since price is the only award determinant among responsive and responsible vendors – i. e. it is necessary to detail every requirement that bidders must include in their prices 13

RFI Alternatives The Procurement Method Matters (Cont’d) Accordingly, it is more feasible to do research, or have potential vendors involved in suggesting or critiquing requirements (specifications) for a CSB/MSSB procurement than a CSP procurement And, as CSB procurements are usually simpler and easier than CSP procurements – Using the RFI alternatives might be very satisfactory in identifying what to specify – So that an RFI still isn’t needed 14

RFI Alternatives Don’t Specify In an evaluated procurement usually it isn’t necessary to prepare detailed specifications Instead the emphasis should be on: – Describing the objective(s) of the procurement The results to be obtained – Detailing everything offerors should address, explain, describe, etc. in their proposals This can be dozens or even hundreds of aspects, characteristics, capabilities, etc. – Identifying the criteria for evaluating offerors’ responses 15

RFI Alternatives Don’t Specify (Cont’d) Avoiding detailed specifications: – Allows the emphasis to be on evaluating what vendors say they can do to satisfy the objective(s) – Means it isn’t necessary, or even advisable, to preemptively decide what constitutes the best solution to achieve the objective(s) and then require vendors to respond to the specified solution 16

RFI Alternatives Don’t Specify (Cont’d) i. e. avoiding detailed specifications allows the determination of what constitutes the best solution to the need or problem to be made after vendors have submitted their offers, been involved in discussions, BAFOs, etc. , not before the receipt of proposals, such as occurs with the preparation of detailed specifications 17

RFI Alternatives Publicly Available Information Vendors are always permitted to submit generic “sales literature” – Usually vendors will have pamphlets or sales brochures describing their product or service – Such literature typically highlight features that are touted as being different from, and superior to the products or services of competitors 18

RFI Alternatives Publicly Available Information (Cont’d) Sales literature can be received from a vendor: – Unsolicited; e. g. in the mail, by email, from a sales person on a “cold call” – Solicited by an agency from the vendor as long as it is made clear that only generic materials may be submitted, not proposals, etc. Such materials may be solicited by the agency at any time, even when in the process of drafting specification – Obtained at trade shows, exhibitions, etc. that agency personnel attend that are not held just for the agency i. e. the general public or multiple potential customers, or types of customers of a vendor might attend 19

RFI Alternatives Publicly Available Information (Cont’d) Agency personnel can attend audio-visual or other types of presentations by vendors at trade shows or exhibitions – As long as the presentation is open to multiple potential customers to attend, not just given for agency personnel Agency personnel can have one-on-one presentations from vendor staff at a trade fair or exhibition as long as such presentations are essentially available to anyone who takes the time to listen to the presentation – i. e. it is not specifically designed for, or exclusively presented to agency personnel 20

RFI Alternatives Publicly Available Information (Cont’d) An internet search may be done concerning a given product or service – Whatever information an agency gleans from an internet site that is available for the public or multiple potential customers to access Contracts or solicitations may be obtained from other public entities that have procured the same or similar product(s) or service(s) – i. e. you can see what other governments have specified, and/or the specific contents of their contracts 21

RFI Alternatives The “Ethics Law” (State Government Article 15 -508) Quote from FAQ 6 from the State Ethics Commission’s Special Ethics Law memo regarding Ethics Law Procurement Provisions (12/1/06) pertaining to the interpretation of SG 15 -508 – “A transcription of a verbatim recording made at a meeting with potential vendors would satisfy the “written comments” provision of the law. Generally it would be expected that this would be an open process involving all anticipated vendors. ” 22

RFI Alternatives Public Forum Two or more entities that are believed to have expertise in the subject of a procurement under consideration by an agency may be invited to attend an open forum to discuss prospective aspects of the procurement – It is advisable to directly invite all anticipated vendors so: At least 2 entities actually attend the forum There is a wider range of suggestions, reactions, critiquing, etc. – Information obtained during a public forum generally does not subject the originator of the information to being barred from receiving a future award because it assisted with the preparation of specifications 23

RFI Alternatives Public Forum (Cont’d) In addition to direct notification of the forum, notice should also be placed in e. Maryland Marketplace under appropriate product codes It is strongly recommended that the proceedings of the forum be transcribed since only written comments are authorized under State Government Article 15 -508 (the Ethics Law) – The transcription should be available to anyone who requests it – Possibly upon the payment of a nominal fee 24

RFI Alternatives Public Forum (Cont’d) Having a forum transcribed avoids the possibility of having to cancel the session if only a single interested entity attends – Without transcription the agency should not proceed to hold what amounts to a one-onone meeting with the attending entity 25

RFI Alternatives Public Forum (Cont’d) The reason to hold a public forum is so that multiple potential bidders/offerors can provide advice, guidance, comments, etc. But, potential bidders/offerors that play a role in connection with the actual drafting of specifications or the development process may be disqualified from participation in the procurement 26

RFI Alternatives Public Forum (Cont’d) The presence of multiple entities serves as a check and balance to each other – If one entity makes a suggestion/statement the others deem to unreasonably favor that entity, the other attendees can immediately challenge the suggestion/statement – Or, if all or most of the attendees agree with a statement or position the agency likely can have confidence in the statement’s credibility 27

RFI Alternatives Public Forum (Cont’d) Attendees at the forum should be told that only generally available, generic commercial information – i. e. product pamphlets or sales brochures – may be provided to the agency – Anything other than this should not be accepted by agency personnel In fact, all the “ground rules” for the forum should be included in the e. MM notice and distributed in writing to invited attendees 28

RFI Alternatives One-on-One Meetings Generally, meetings between agency personnel and representatives of a single entity should be avoided If this is done all anticipated vendors should be invited to attend a one-on-one meeting – Per slide 12 However, even if multiple anticipated vendors participate in one-on-one meetings, each such meeting should be transcribed in its entirety – Other entities should be notified of the availability of the transcription and how they might obtain a copy 29

RFI Alternatives No-No An agency may not hire a consultant to assist with drafting specifications and direct that consultant to obtain specific information from a specific vendor(s) – i. e. a consultant cannot by specific direction do for an agency what agency personnel would not be permitted to do directly 30

Competitive Sealed Proposals (CSP) Flexibility CSP Vs. RFI 31

CSP versus RFIs are not needed for evaluated procurements – Competitive Sealed Proposals (CSP) The essence of an evaluated procurement is to: – Focus on the overall objective(s) to be achieved – Minimize detailing (specifying) how to achieve the objective(s) – An absolute evaluated procurement would have no prescriptive requirements of how the intended objective(s) is/are to be achieved 32

CSP versus RFI (Cont’d) If nothing has to be specified for a pure evaluated procurement, there is no need to seek input from vendors as to what should be specified It takes time to prepare, issue and seek responses to a RFI An agency will then need to assess information provided by vendors to see if: – – – RFI provisions are consistent with State Ethics requirements The resulting solicitation disqualifies any of the vendors from participating in the procurement, and What if anything to incorporate from the responses 33

CSP versus RFI (Cont’d) No vendor RFI response is binding – – A vendor might say it would respond to a solicitation for the indicated procurement subject, and then not do so Even if a vendor provided comments or suggestions, it still might not respond to the actual solicitation Also, vendors may hesitate to make suggestions – – That if incorporated in the solicitation might tip off their competitors to their strategies; or, Might cause them to be ineligible to respond Plus, vendors that don’t respond to the RFI can still respond to the RFP So neither responses nor the lack thereof, may be indicative of what to expect for the real solicitation 34

CSP versus RFI (Cont’d) Conversely, anything that can be done with a RFI can be done with a sealed proposals procurement Specifications can be changed before the proposal due date – Except for something set in law or regulations Which also wouldn’t change under a RFI – – The change can be slight, major, or a complete re-write But, vendors must be given sufficient time to consider the change and incorporate it in their proposals 35

CSP versus RFI (Cont’d) With a CSP, vendors that are interested in the procurement will respond with suggestions and questions Suggestions and questions will generally not bar a vendor from continuing to participate in the procurement and receiving an award Time for questions and answers should already be built into the procurement process So no extra time is taken, as with a RFI 36

CSP versus RFI In CSP procurements the only requirements are to: – State the purpose of the procurement Overall objective/goal(s) to be achieved – – – Identify any required activities (Scope of Work) Identify the evaluation criteria to rate proposals Require a price to do what an offeror proposes State the relative importance of the technical evaluation factors and price versus the technical offering State if multiple or alternate proposals are permitted Include mandatory clauses and administrative details, such as when proposals are due and the pre-proposal conference will be held, the duration offers are irrevocable, the right to conduct discussions, etc. 37