Once the competitive range has been established, the procuring agency may use one or both of the following processes, described following:
- Conduct discussions with proposers in the competitive range.
- Conduct negotiations with highest ranked proposer.
Conduct discussionsPrior to more formal negotiations with the highest ranked proposer, the procuring agency may enter into broader discussions with some or all of the proposers in the competitive range as may be required to achieve the best value proposal to the agency. A procuring agency may stop discussion with any proposer at any time in the process as required.
Discussion may begin with, and must end with a request for revised proposals from proposers in the competitive range. If the evaluation team determines it would benefit from revised proposals, the procuring agency may seek revised proposals from proposers in the competitive range to request additional information, to address issues or concerns they have with a proposal or to clarify aspects of proposals. If the evaluation team requests revised proposals, it must reevaluate the revised proposals according to the criteria described in the RFP.
The procuring agency may then conduct discussions with proposers in the competitive range as needed. In conducting discussions, the procuring agency must treat all proposers fairly showing no favoritism to any one proposer, may not discuss or disclose the contents of a competitor’s proposal with another proposer, and may not suggest or direct action on specific revisions that a proposer should make to its proposal.
After completing discussions with all proposers, the procuring agency must send a notice to each proposer in the competitive range with a specified date and time for submission of a revised proposal. No further discussions may be held once the procuring agency provides the proposers with a formal request for revised proposals.
Upon receipt of the revised proposals, the evaluation team must evaluate the revised proposals based upon the evaluation criteria described in the RFP, and rank the revised proposals based on the evaluation team scoring. The procuring agency may conduct discussions with and accept only one revised proposal from each proposer in the competitive range unless otherwise stated in the RFP.
Conduct negotiationsThe procuring agency may negotiate contract terms with the intended awardee either following the initial evaluation or after performing discussions, whichever is most advantageous to the agency. Terms and conditions of the potential contract may be negotiated to the extent allowed by the RFP provided that the general work scope remains the same and that the competition is not reduced due to material changes to the requirements stated in the RFP.
Prior to initiating negotiations, the procuring agency must establish a negotiating team and should prepare a summary of points to cover in the negotiations. During the negotiations the team should document the outcome of negotiations for each point. Verbatim records of the negotiations are not required.
The procuring agency may terminate negotiations with a proposer and enter into negotiations with the next highest-ranking proposer. The procuring agency may take this action after a time period established in the RFP if it believes the proposer is not negotiating in good faith or if the procuring agency has determined that further negotiations will not result in the parties agreeing to the terms and conditions of a contract in a timely manner.Terms that may be negotiated consist of details of:
- Contract performance.
- Methods of construction.
- Assignment of risk in specified areas.
- Other matters that could affect the cost or quality of the work.
For the CM/GC (and Design/Build) methods, negotiable terms may also include:
- The specific scope of pre-construction services.
- The general contractor work.
- Any early work and other construction work to be performed by the CM/GC.
In ESPC contracting, negotiable terms may also include:
- The scope of preliminary design of ECMs, which the parties will evaluate during the technical energy audit phase of the work.
- The scope of personal services and work to be performed by the ESCO during the project development plan phase of the work.
- The detailed provisions of the Energy Savings Guarantee to be provided by the ESCO and scope of work.
- Methodologies and compensation terms and conditions during the design and construction phase and M&V phase of the work.
A procuring agency may conduct serial negotiations with the highest-ranked eligible proposer or may conduct simultaneous negotiations with all eligible proposers. A procuring agency may negotiate any element called out as negotiable in the RFP, including:
- Proposed statement of work.
- Proposed price.
- Other terms and conditions authorized for negotiation in the RFP.
A procuring agency must not accept alternative terms and conditions that are not reasonably related to those authorized for negotiation in the RFP.
For multiple award contracts, the procuring agency may enter into contracts with different terms and conditions with each contractor to the extent those terms and conditions are within the scope of the RFP and do not materially conflict with the applicable contractual terms and conditions.