Selecting Your Procurement Process

Decision - fork in roadeSeminar

In this eSeminar, we will start at the beginning by examining one of the most critical decisions in procurement – the choice to use a binding or non-binding process. Increasingly, organizations across the country are using the “NRFP or Negotiated RFP”. As negotiations always have been (and can continue to be) conducted within a binding Contract A process, we prefer the term “non-binding RFP” to “negotiated RFP” to distinguish between the two approaches.

Since the pivotal decision in Ron Engineering, there have been many court cases considering this issue of Contract A, and in particular, whether parties have breached legal obligations under Contract A that entitle the complaining party to damages. Partly because of these major lawsuits, organizations in Canada have begun to question the wisdom of conducting procurements within the Contract A legal paradigm. The courts have sent a clear signal that owner organizations can in effect ‘opt out’ of Contract A, by including very express language in the RFx document, and ensuring that their conduct is in line with the declared RFx process.

We’ll explore the option of bypassing Contract A when setting up and conducting competitive procurement processes. At first blush it may seem like a simple and effective strategy to avoid legal liability, however as we will see, the decision requires some critical analysis as additional risks can also be created by this approach.

Learning Objectives

  • Differentiate between binding and non-binding procurement
  • Analyze factors that drive the decision to step outside Contract A and choose a non-binding process
  • Examine non-binding RFx examples

IN-HOUSE DELIVERY

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