Strategies for responding to a state of Wisconsin services RFP

The state of Wisconsin contracts with private enterprise to provide a wide variety of services to the public. On an annual basis, the state spends hundreds of millions of dollars for these services. To win a competitive request for proposal (RFP) solicitation, businesses should adopt a strategic and thoughtful approach that begins before the RFP solicitation is made public and continues after the award is announced. This article will discuss strategies for businesses to consider throughout the procurement process.

Prior to the solicitation

It is common for businesses competing for a service contract to begin preparations for a response only after the RFP is publicly announced. This is not advisable. Businesses can take certain preparatory actions before the release of the RFP solicitation that will benefit their response.

• Begin background research before the solicitation is public. Interest groups and other stakeholders may have knowledge of an agency’s motivation for pursuing a services contract. Businesses interested in a potential service contract with the state should gather information from these stakeholders. Additionally, businesses should research any publicly available documentation from the applicable agency or other public body that may reference the agency’s need or desire to contract for services.
• Comply with ethical standards. Wisconsin’s procurement ethics rules are some of the strictest in the nation. Among other things, there are three basic rules that all businesses should understand before the solicitation is public. First, neither the business nor any of its agents may offer or give to a state official or employee, directly or indirectly, anything of pecuniary value if it could reasonably be expected to influence that person’s judgment. Second, businesses should be very cautious about campaign contributions from their executives or corporate treasury that are made near the time of a potential RFP solicitation. Even if these contributions adhere to all applicable campaign finance laws and are not made with the purpose of influencing the actions or judgment of public officials, businesses should prepare for public scrutiny of those contributions. Third, although Wisconsin’s lobby law generally does not apply to the procurement process, a state contract may, on occasion, require approval by a legislative committee. Any communication between a paid representative of a business and a public official relating to the legislature’s action on the proposed contract will trigger the reporting, registration, and restrictions under Wisconsin’s lobby law.

Responding to the RFP

• Remember the state is the audience for the RFP document. An RFP response is no different than any other narrative document — it should be written with the document’s audience in mind. The state will not be impressed by a response that highlights flashy marketing materials. Such marketing materials will likely detract from the substance of the business’ RFP response. Effective responses will specifically and substantively address the questions set forth in the RFP document. Moreover, failing to carefully address all RFP requirements will likely spell trouble for your business’ chance of winning the services contract. 
• Avoid communications with agency personnel. Once an RFP solicitation is made public, communications with agency personnel (and often all state employees) regarding the RFP are prohibited. Any such communication may provide grounds for a protest of the eventual contract award by a competing business. 
• Submit questions in the appropriate manner. Many RFPs designate an agency employee who is responsible for answering responder questions. Any questions submitted to this employee must adhere to all applicable requirements (e.g., emailed questions only, no phone calls). Failing to abide by these rules could doom a business’ RFP response.

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Strategies after the contract award is announced

• Know the contract provisions where negotiation is possible. Once an award is announced, the winning responder must know the contract provisions where negotiation with the agency is possible and the provisions that are mandatory.
• Consider a protest. Businesses that have lost an RFP award and are considering a protest should immediately make a public records request to obtain the agency’s entire electronic and hard copy file relating to the RFP. If grounds exist for a protest, businesses should further consider whether there are any public relations issues or other sensitive considerations to take into account before filing a public protest.
• Move quickly if grounds for a protest exist. The RFP protest process moves more quickly than most litigation. Initially, there are two important timelines. First, from the date the notice of intent to award the contract is issued, a protesting business has only five days to file a notice of intent to protest. Second, the written protest, which must specifically set forth the statutory and/or regulatory violations committed by the agency, must be filed 10 days from the day the notice of intent to award is issued. Engaging legal counsel early in the RFP process will help ensure that filing deadlines are not missed.

Winning a service contract with the state of Wisconsin requires attention to detail and careful planning. Businesses will have an edge on the competition if they know the applicable rules from the outset and develop a coordinated effort to respond to the RFP that involves legal and government relations counsel.

J. Wesley (Wes) Webendorfer is a regulatory and litigation attorney who assists businesses and trade associations in their interactions with government agencies and lawmaking bodies at DeWitt Ross & Stevens.

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