Experience with innovative procurements indicates that holding one-on-one meetings with proposers is beneficial whenever selection is based on a best value evaluation of competitive proposals—whether the procurement contemplates selection based on initial proposals or whether selection will be made following discussions and receipt of revised proposals. Some agencies are unaccustomed to holding confidential meetings with proposers and we are often asked for information about best practices for these meetings. This blog discusses the benefits of such meetings and issues to be considered by the procuring agency in establishing procedures for these meetings.
- Benefits of One-on-Ones. We have heard from proposers that one-on-one meetings gives them an enhanced understanding of the owner’s goals and the project needs, enabling them to submit better proposals. The ability to participate in such meetings is critical when a proposer is offered the latitude to include alternative technical concepts (ATCs) in its proposal. Holding one on one meetings also helps to level the playing field for firms that have not previously had an opportunity to work with the project owner. Benefits to the owner also include the ability to improve the quality of the procurement package based on comments from proposers, and to gain a greater understanding of how proposers view the project requirements and risks.Use of one-on-one meetings is particularly helpful when the procuring agency is using a project delivery method for the first time, and must make decisions relating to the procurement and contract without the benefit of past experience with similar projects. Even when the agency has past experience, meetings can still be beneficial, since every project is different, and proposers on the new procurement may not have had the opportunity to participate in meetings for previous projects.
- Agencies Using One-on-Ones. Federal agencies procuring contracts under FAR 15 routinely hold one-on-one meetings with proposers during the pre-proposal period. FAR § 15.201(a) specifically encourages agencies to engage in such meetings to exchange information with potential offerors, with the stated goal of improving the understanding of all participants regarding both the owner’s requirements and industry capabilities. According to FAR § 15.201(b), this process allows potential offerors to judge whether or how they can better satisfy the owner’s requirements and enhances the owner's ability to obtain quality supplies and services at reasonable prices. It also increases efficiency in proposal preparation, proposal evaluation, negotiation, and contract award. Section 15.201(c) notes that an early exchange of information helps to identify and resolve concerns regarding the acquisition strategy, the feasibility of the requirement, the suitability of the proposal instructions and evaluation criteria, the availability of reference documents, and any other industry concerns or questions.One-on-one meetings are also commonly used in design-build and public-private partnership procurements by state and local agencies. Requests for proposals (RFPs) issued by the California Department of Transportation (Caltrans), Florida Department of Transportation, Texas Department of Transportation and many other agencies contemplate one-on-one meetings with the shortlisted proposers. These meetings are particularly important where the RFP allows proposers to submit ATCs since the proposers need to receive feedback on such concepts before deciding whether or not to invest time and effort to incorporate them into the proposal, and proposers are highly concerned about preserving confidentiality of their proprietary ideas.
- Procedures for One-on-Ones. Since one-on-one meetings often involve provision of information and feedback by the project owner to the proposers, it is important to ensure that no proposer gains an unfair advantage through these meetings. Our firm generally recommends that the project owner’s contracting officer (or other designated individual) be given responsibility for attending all one-on-one meetings and keeping track of information provided to the teams, to ensure that all teams receive the same information.
The guidance provided by FAR 15 may be helpful to procuring agencies establishing procedures for one-on-one meetings. According to FAR § 15.201(c)(4), meetings with potential offerors involving potential contract terms and conditions should include the contracting officer, and after release of the solicitation, the contracting officer must take a more active role in any exchanges with potential offerors. The FAR follows a clear equal treatment rule. According to FAR § 15.201(f), when specific information about a proposed acquisition that would be necessary for the preparation of proposals is disclosed to one or more potential offerors, that information must be made publicly available as soon as practicable, but no later than the next general release of information, in order to avoid creating an unfair competitive advantage. However, FAR § 15.201(f) also states that information provided to a potential offeror in response to its request may not be disclosed if doing so would reveal the potential offeror's confidential business strategy.
Agencies may also look to language in RFPs issued by other agencies in setting up procedures for one-on-one meetings. The RFP for TxDOT’s Harbor Bridge Project offers one such example, stating:
- One-on-one meetings will be held with Proposers to discuss issues and clarifications regarding the RFP and Proposer’s ATCs.
- TxDOT will not discuss with any Proposer any Proposal or ATC other than its own.
- Proposers shall not seek to obtain commitments from TxDOT in the meetings or otherwise seek to obtain an unfair competitive advantage over any other Proposer.
- No aspect of these meetings is intended to provide any Proposer with access to information that is not similarly available to other Proposers, and no part of the evaluation of Proposals will be based on the conduct or discussions that occur during these meetings.
- Persons attending the one-on-one meetings will be required to sign an acknowledgment regarding the rules applicable to the meetings, and each Proposer will be required to identify all participants from the Proposer whether attending in person or by phone.
- Proposers may ask questions and receive informal responses during the one-on-one meetings, but may not rely on responses received during the meetings.
- TxDOT reserves the right to disclose to all Proposers any issues raised during the one-on-one meetings, except to the extent that TxDOT determines, in its sole discretion, such disclosure would impair the confidentiality of an ATC or would reveal a Proposer’s confidential business strategies.
It has become a standard practice for innovative procurements to include confidential one-on-one meetings with proposers. Owners engaging in such meetings should adopt procedures to ensure that relevant information provided to one proposer is provided to all of the proposers, and to ensure that confidential business information discussed in the meetings is not inadvertently passed on to other proposers.
Co-founder of Nossaman’s Infrastructure Group, Nancy Smith is nationally known for her expertise in use of design-build, public-private partnerships (P3s) and other innovative contracting methodologies for public ...
Nossaman LLP’s 30-plus infrastructure attorneys offer clients, colleagues, strategic partners, and industry media a wealth of practical experience, insider insight, and thoughtful analysis here on Infra Insight. We blog about what we know best, from industry-leading procurements to local and national policy developments that affect the market and our clients.