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July 9, 2025
Consistency of language is important in our contract documents. RFPs typically focus on "best value," allowing for subjective evaluation criteria such as technical merit. At the same time, ITBs emphasize awarding contracts to the "lowest responsible bidder" based on objective price considerations. Misuse or using these terms interchangeably in solicitations can lead to disputes, particularly if bidders misunderstand the evaluation criteria or process.
Relevant Case Analysis
- Dana, Larson, Roubal v. Board of Commissioners: This case explicitly distinguishes between RFPs and ITBs, emphasizing that RFPs are flexible and focus on technical excellence and cost. In contrast, ITBs are rigid and prioritize the lowest price. The court noted that using these terms interchangeably could create confusion for bidders. In this case, the RFP was described as "for information and/or planning purposes only," the county reserved the right to negotiate separately or reject all proposals. The court found no constitutionally protected property interest for the bidder because the RFP did not obligate the agency to accept any proposal, highlighting the importance of clear solicitation language.
- Caber Systems v. Dept. of Gen. Serv: This case involved confusion over the interpretation of an ITB, where bidders had differing understandings of how their bids would be evaluated. The court found that the ambiguity in the ITB's language led to unfairness for bidders and potentially reduced-price competition. The court ultimately upheld the agency's decision to reject all bids and reissue the solicitation with clarified language, underscoring the need for precise and consistent terminology in solicitations.
- Sayer v. Dept. of Transportation: This case addressed using a "best value" selection process under a design-build RFP, which differed from traditional ITB processes. The court upheld the agency's discretion to evaluate proposals based on criteria outlined in the RFP, rejecting arguments that the process should conform to ITB standards. This decision highlights the importance of adhering to the solicitation's stated evaluation criteria and the potential for disputes when bidders expect ITB-like objectivity in an RFP process.
- Morphotrust U.S., Inc. v. Dist. of Columbia Contract Appeals Bd.: This case involved a challenge to an RFP's specifications, where the bidder argued that the agency's requirements were overly restrictive and not aligned with the solicitation's intent. The court emphasized the agency's obligation to draft RFPs by statutory and regulatory requirements, ensuring clarity and fairness in the solicitation process. While this case does not directly address the interchange of RFP and ITB terms, it underscores the importance of clear and consistent solicitation language to avoid bidder confusion.
Observations and Patterns
The cases above reveal several important points:
- Courts consistently emphasize the need for clear and precise solicitation language to avoid bidder confusion and ensure fair competition.
- Misuse or ambiguity in solicitation terms, such as conflating RFPs and ITBs, can lead to disputes and, in some cases, require the solicitation to be reissued.
- Agencies are generally afforded discretion in drafting and evaluating solicitations, but they must adhere to the stated terms and applicable laws.
Conclusion
While none of the referenced cases explicitly involve a government agency using RFP and ITB terms interchangeably, the principles established in these cases suggest that such misuse could lead to disputes and potential legal challenges. Courts have consistently required agencies to ensure clarity in their solicitations and evaluate bids or proposals according to the stated criteria. If you are dealing with a specific instance of such misuse, it would be prudent to examine the solicitation's language and the agency's adherence to its stated terms.
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Agency Discretion
Kirk Buffington
