Reservation of Right to Request Additional Information From Some Proponents But Not Others Is Consistent With the Flexibility Inherent to RFPs

Reservation of Right to Request Additional Information From Some Proponents But Not Others Is Consistent With the Flexibility Inherent to RFPs

The Court of Appeals of Puerto Rico held that an RFP which reserves the right for the Evaluation Committee to request additional information from short-listed proponents does not violate due process.

Similarly, the court rejected the protester’s contention that allowing a proponent to submit additional documents during the evaluation process was an abuse of discretion by the bid board.

On the contrary, the court concluded that requesting additional documents from short-listed proponents is entirely consistent with the flexible nature of RFPs which allow for negotiation and submission of revised proposals.

Although this was not mentioned in the court’s decision, I would add that the exercise of such right by the bid board or evaluation committee must be reasonable.

In other words, while I agree that such right is consistent with the flexible nature of an RFP, there must be a written record on why some proponents were short-listed and not others and why some proponents were requested to submit additional documentation but not others.

While a bid board or evaluation committee does not have to request the same clarification from all proponents, those proponents which have a reasonable opportunity to be selected for award should be offered the same opportunity to engage in meaningful discussions and/or negotiations.