Whether 'tis nobler in the mind to suffer the slings and arrows . . . Oh, wait. Wrong blog.
I spent the morning at the DBIA Northwest Region Owner's Forum, sponsored by Mortenson Construction (Thanks, Jim.) Craig Unger and I spoke on the topic of proprietary meetings, those meetings between owners and design-build proposers that allow the parties to start the communication process, clarify the owner's program and exchange information prior to the submission of the proposal. Even though proprietary meetings are a DBIA best practice, they are often misunderstood and met with resistance from owners and owner's attorneys. Craig spoke about the mechanics of the proprietary meeting, while I talked about the legal issues.
Craig had participated in many procurements and suggested two sets of proprietary meetings, one during the RFQ process and then again during the RFP process. His suggestion is to mark the first RFP as a "draft" to solicit suggestions from the finalists, then issue a final RFP incorporating any changes suggested by the proposers. This process provides the owner the opportunity to "test drive" it's program for feasibility and to flesh out any items that are unnecessarily driving the schedule or cost.
Proprietary meetings can be an excellent way for owners to clarify their program and communicate with proposers, but public owners need to be careful not to run afoul of their authorizing legislation. The basic tenets of fairness still apply in alternative procurement. Owners cannot give an unfair advantage to one bidder over the others. Owners can and should solicit and evaluate innovations proposed by the finalists, but if a solution is not responsive to the RFP, the case law suggests that the owner should issue an addenda that addresses the issue or reject the proposal.
Attached is a link to my powerpoint presentation for the Owner's Forum. http://rtp-law.com/uploads/Proprietary_Meetings.pdf There is more to come on this topic in future posts!
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