Page 11 - The Edge - Spring 2018

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AVOIDING DISPUTES Two of the most critical terms in a solicitation, which can
CONTINUED FROM PAGE 10 lead to a dispute, Holcomb said, are “may” and “shall.”
“You want to use very serious thought every time you use
price. He noted that cooperative contracts, while simpli ed, still one of these words,” he said. “May denotes permissive, shall
involve a competitive process. denotes imperative.” He recommended against using the word
Under an IFB, it must be spelled out that “this is exactly what “must,” which he said is not a de ned term. “Shall” leaves no
I want,” Holcomb said. Under an RFP, speci cations are not fully doubt about what is required, but “may” gives the opportunity
de ned, and factors in addition to price include quali cations to make changes, he said.
and experience of the vendor, which generally are examined by a Regarding the use of emails, a school district may allow
committee. He emphasized that having an evaluation committee electronic media transactions, including an electronic record
is very important. “ is allows for negotiation with selected or signature, if consistent with state law and is advantageous
providers, and the award is based upon what is most advantageous to the school district.
under the evaluation criteria,” Holcomb said. “ ey can be the most useful and most dangerous thing,”
Under a Request for Quali cations, a process o en used for Holcomb said. “Email stands for Evidence Made Available
construction projects, price is not an evaluation factor and the In Litigation,” he joked. Emails are OK for communication
contract may be awarded to multiple vendors. purposes, but not for contract changes, he said.
To avoid a protest, Holcomb recommended: “Say it once. If When it comes to a response to an RFP, timely delivery is
something is said twice, that’s a potential for con ict. It’s what required. Procurement rules state that “late responses shall not
lawyers use to send their kids to college. And you want to make be considered under any circumstances.”
sure what you say is precise and clear.” Districts have several rights in the process, including the
He also recommended that terms be de ned, again to avoid right to extend the date when responses are due, and to reject
confusion and a possible protest. any and all responses in whole or in part.
Regarding the use of consultants, Holcomb referred to In awarding a contract, no factors or criteria may be used in
procurement rules which state that “a school district may contract an evaluation that are not set forth in the request for proposal,
with a procurement consultant to assist in dra ing speci cations, Holcomb noted.
in the development of solicitations, or in the management of the Holcomb outlined procedures for a hearing of a protest.
procurement process” and “may provide guidance to a procurement “Take it seriously,” he said. “It’s like a court, but not the
evaluation committee, but shall not serve as a voting member of same. It’s more like an arbitration – rules of evidence to not
such committee.” apply. ere is no required discovery or disclosure, and the
Furthermore, a consultant or anyone involved in the process is hearing o cer administers the oaths.” Costs for a hearing are
prohibited from receiving any bene t directly or indirectly from a paid by the school district, but if the district prevails, it gets
procurement contract and is required to sign a statement indicating reimbursed.
no interest in the procurement, other than a remote disclosed
interest, and shall not have any contact with a representative of a
competing vendor related to the speci c procurement, except for Scott Holcomb can be reached at sholcomb@dickinsonwright.
contacts authorized by the rules, Holcomb said. com or (602) 285-5028.

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