Procurement: What Not to Do
State procurement is a complex process that, when successful, can lead to opportunities for a business to grow. For companies new to state procurement, or those seeking opportunities to bid on larger state contracts, a smart strategy could be hiring an experienced government affairs firm to help navigate the process and develop a competitive bid. However, when retaining government affairs consultants, it is vital to hire professionals who understand the law and how to advocate for your interests in a way that does not violate procurement regulations.
A recent case in Maryland demonstrates the importance of understanding state law to avoid the possibility of eliminating your firm from the opportunity to bid.
In this case, a well-qualified company seeking to bid on a pending State contract (the “bidder”), hired a government affairs firm to represent it in the RFP process. At the same time, during the development of the RFP, a State actor asked the government affairs firm to provide examples of similar RFPs the bidder had responded to in the past in order to avoid reinventing the wheel. Over several months, the bidder provided the state through emails and meetings, examples of bids from other states and details on what the project should look like including the option to “piggyback” the project with another existing contract to avoid procurement.
When the RFP finally released for bid, the State procurement officer excluded the bidder from responding due to the extent of conversations between the State actor, the bidder and the government affairs firm, and the assistance the bidder and firm provided the State in the drafting of the specifications.
State procurement law provides that “…an individual who assists an executive unit in the drafting of specifications, an invitation for bids, a request for proposal for a procurement…may not…submit a bid or proposal for that procurement…”.
The Board of Contract Appeals upheld the procurement officer’s decision to bar the bidder from the RFP citing that the extensive communications did not fall within the exceptions of allowable communications under procurement law.
While hiring a government affairs consultant can be beneficial in successfully bidding on state contracts, it can be detrimental if the consultants do not understand the complexity of state procurement law. Our team at Old Line Government Affairs is uniquely experienced with extensive backgrounds in law, business and elected office. Our access to, and experience in, the executive and legislative branches of State and local government is unmatched.