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RFP provisions that hurt, not help, the customer

I stumbled upon a request for proposal (“RFP”) containing provisions that pretty much always increase the time, cost, and difficulty of getting a contract to signature, for both buyer and seller. Here are a few examples (all emphasis is mine).

RFP language: The basic Contract is attached to this RFP as Exhibit A. The boilerplate contract provisions/terms and conditions are not negotiable.

DCT comment: It would speed things up if the RFP were to indicate which specific provisions were not negotiable, instead of leaving the supplier’s lawyer guessing.

RFP language: Please note the attached basic contract is representative only.

DCT comment: It’s not clear what that’s supposed to mean.

RFP language: A response to this RFP is an offer to contract with [Customer] based upon the terms, conditions and specifications contained in this RFP. * * *

Respondent’s Response to this RFP, including any attachments thereto, will be incorporated as part of the executed contract to the extent the response does not conflict with this RFP. * * *

This RFP will become part of the terms and conditions of all responses and any contract awarded as a result of this RFP. … Any exceptions must be expressly agreed to by [Customer] in writing ….

DCT comment: Taken together, this language arguably means that, if a supplier submits a response to the RFP, the customer has the right to deem that the supplier has submitted an offer containing no exceptions, proposed modifications, etc. — and, by accepting that “offer,” to force the supplier do business on the original terms of the RFP.

Would a court enforce such an interpretation? I don’t think any of my clients would be interested in finding out.

A responding supplier might therefore do well to respond, “we are NOT responding to this RFP, and we do NOT offer to contract with [Customer] on its terms and conditions, because it contains unworkable requirements and terms and conditions — however, we would be willing to discuss doing business with [Customer] along generally the following lines ….”

RFP language: Respondents guarantee and warrant that their RFP responses will meet or exceed all specifications of this RFP.

DCT comment: Leaving aside the redundancy of “guarantee and warrant,” a more-workable approach would be to include the following yes-or-no question in the RFP: “Does your response meet or exceed all specifications of this RFP?” and then have the respondent certify the accuracy of that particular response.

RFP language: Notwithstanding any disclaimers in any RFP response or other Respondent document and notwithstanding any other provision of this RFP or the contract to the contrary, Respondent warrants and guarantees that all services shall meet all specifications of the executed contract and Work Orders, if any, including but not limited to this RFP.

DCT comment: It’s understandable that a customer would want to ensure that its RFP specifications found their way into the reps and warranties of any resulting contract. But these provisions violate the basic DRY (Don’t Repeat Yourself) principle of contract drafting.

A better approach would be to include the following yes-or-no question in the RFP, with the response to be certified as true by the supplier: “Does your response to this RFP indicate your willingness to warrant compliance with the specifications set forth in Schedule X, as stated there without modification?”

RFP language: Respondent may not assign this RFP and any resulting contract, in whole or in part, and may not assign any right or duty required under the RFP or awarded contract without the prior written consent of DOI.

DCT comment: A non-assignment clause like this is often a deal-killer if it doesn’t include a carve-out for strategic transactions such as sale of business assets. See this note as well as these sample clauses for more information.

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