Q:

Our entity follows the trade agreements and public procurement guidelines. A procurement associate has been requested to draft an RFP for a services contract valued at over $1M per year, and to be the only evaluator for proposals received. Based on what I have learned from your courses I do not believe this is a best practice, but I’m unable to find any specific information on this in my website searches. Do you have any information on why this would not be fair and open, so that I can discuss this with the manager in charge?

A:

Thank you for your great question. You are correct that assigning a single person to carry out all those RFP functions is problematic. It’s not an issue around openness and fairness but rather introduces risks into the process around a failure to segregate duties, as discussed below.

In the PSPP training we teach that it is a best practice to segregate duties in the procurement to pay function. A primary reason for this practice is to reduce the risk of fraud, collusion or wrongdoing in procurement. When everything in the RFP process is controlled by a single person, there is no effective oversight or “check and balance” mechanism that ensures they are acting without collusion or conflict of interest, for example. There’s a good discussion on the reasons to segregate duties generally on the following website: https://www.aicpa.org/interestareas/informationtechnology/resources/value-strategy-through-segregation-of-duties.html

In terms of only having one evaluator of the proposals, I would suggest that your organization may be placing itself and this employee at risk. I would recommend having at least three people on the evaluation committee, primarily to diffuse any suspicion of conflict and ensure appropriate segregation of duties. From a practical perspective as well, the evaluation of technical criteria often involves a significant degree of subjectivity. By establishing a larger evaluation committee you are bringing together more knowledge to ensure a thorough and thoughtful consideration of the proposals. It is preferable to include parties that understand the industry involved and the end-user requirements in the evaluation. A single procurement officer is not likely to bring all of this to the table in her/his evaluation which creates a higher risk of misunderstanding of the proposals and problems with the scoring. And if there are challenges to the process, this unfortunate procurement person will be alone in the cross hairs of the complaint rather than have the support of a team that has thoughtfully and carefully deliberated on the technical evaluation.

These are just some of the considerations.

Special thanks to Lise Patry at Patry Law for her assistance with this response.

Lise Patry, an instructor with NECI, is a lawyer and former business executive with a strong background in technology and more than 20 years of business and legal experience in the public and private sectors. As principal of LXM Law, in addition to general law, she offers virtual counsel services and specialized expertise in contracts, licensing, government procurement and corporate governance. She can be reached in Ottawa at (613) 601-6333 or lise.patry@lxmlaw.ca.

Lise Patry

BA | Sc | LLB | ICD.D | NECI Instructor| LXM Law

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