Drafting the Request for Tender Offers: Important Terms and Conditions – Charles Rumbaugh Guest Lecturer Naval Postgraduate School IDARM International Defense Acquisition Resource Management Program Goal(s) of the Request for Offers • Meet end user requirements • Specifies proposed conditions of the sale • Requests that prospective contractors submit an offer • Other goals could include… – – – – – Maximize competition Seek (alternative) solutions to a mission requirement Quick response Minimize price to be paid May be multiple/ Other? conflicting purposes Long Term Goal(s) • May be negatively impacted in achieving the immediate goal. For example: – Limiting competition can have a serious consequence related to life cycle/ownership costs – Using commercial/“off-the-shelf” items – Others? Maximize Competition • Clearly, accurately, and completely describe requirement(s) – Exclude unnecessary restrictive specifications – SOW • Provisions that are generally acceptable to the industry – Role of Market Research – Benchmarking • Reasonable time for submission of tender offers • Clear evaluation methodology that will result in fair evaluation and selection of the best offer. Quick Response • Adequate Market Knowledge of Potential Sources • Existing Contractual “vehicle?” – Past Performance a factor? • Predefined Bidding Limitations – Specification/SOW issues • Legal Right to Exclude Sources • Problems with this Goal – – – – – – Pricing issues Lack of competition May affect quality Influences contract type Other approaches available? “Alpha Contracting” And others….. “Must Haves” • • • • • • • • Price Period for Validity of Offer Responsive Offer from Responsible Offeror Compliant with Request except for… Certifications Representations/Warranties—What are they? Identification of Authorized Negotiators Others? “Nice to Haves” • Alternative Offers • Negotiable Items – You may be willing to eliminate these items – Relationship to Price • Options • “Nice to have” and “must have” provisions can impact price Functions of the Contract • • • • • Record of “the” agreement Document which frames and facilitates contract administration activities Risk allocation among the parties Defines Payment Terms Performance Incentive to Contractor Request for Tender Forms the Foundation For the contract First Steps—RFT • Identify the approved requirement • Ensure specification and SOW is clear • What is the estimate? • Ensure that funds are/will be available – The contract will create a legal obligation to pay Funding over the near and long term Next…Organization of Information • Uniform assembly of information that permit interested suppliers ease of access to information necessary to submit an acceptable tender offer. – Web/electronic posting • Systemic approach is preferred Pricing Information • What information is necessary to determine a fair price? • What information may be available to determine a fair price? – Market Research – Reverse Engineering • To what extent does the request for tender provide you the flexibility to obtain the necessary pricing information? Next Steps • Selection of the contract type – Consideration of • • • • • Risk Payment mechanism Maturity of requirement Clarity of requirement Urgency Cost Typ e Hour s Fixed price Unprice d Next Steps • How to conduct the procurement…. Competitive. . Restricted.. Next Steps • How to Identify and Solicit Potential Sources – Trade Associations Market Research Advertisements www.thomasregister.com Embassies Other Customers Next Steps • The Team….who is on the team Who does not belong on the team? Dealing with Interested Parties What are the ground rules for communication? Terms & Conditions • Tender/proposal submission requirements • Provisions that must be included in the subsequent contract • How capabilities will be evaluated Changes that are required after release impact schedule/price Provisions……. Ethics Inspection Insurance Data Disputes Quality Options Security Delivery Notifications Record Keeping Payments Warranty Modifications Terminations Provisions……. • Inspection • Acceptance Criteria • Intellectual Property Rights • Software • Quality Terms/Processes • Payment Provisions • Security • WarrantiesExpressed/Implied Evergreen • Changes/Modifications • Delivery Terms INCOTERMS Bill of Ladings • • • • Indemnification Insurance Limitation of Liability Terminations— Default/Convenience Delays/Force Majeure Liquidated Damages • Dispute Resolution Arbitration New York Convention on Enforcement of Awards More Provisions……. • Recordkeeping and • Import/Export law— Reports Licenses • Notifications ITAR • Countertrade and Offset • Applicable Law agreements Foreign Corrupt Practices Act • In-Country sources of Ethics/Bribery supply UN Convention on Contracts for • Key Personnel the International Sale of • Language Goods (CISG)/Treaties • Taxes Uniform Commercial Code (UCC) • Subcontractors And Even More Provisions……. • Additional Terms Assignment Environmental Nondisclosure/Publicity Severability Integration clause Other… RFT Summary/Best Practices • Conduct Market Research/Benchmark • State with clarity, accuracy, & completeness the desired goods/services • Identify Risks & Select Right Contract/Pricing Approach • Develop Quality Request for Tenders • Plan Selection and Negotiation Strategy • Use (appropriate) consultants • Create Contract Provisions “Favorable” to Buyer!