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Tips on Bidding on Public Contracts

February 27, 2019

 

Introduction

 

Public bidding projects (often called “procurements”) have billions of dollars for the taking by entrepreneurial contractors of all kinds, from plumbers to aeronautical consultants. Want to get in on the action? Here are some pro-tips (or bidding “hacks” or if you’re a gamer “hax”) to get you through the bidding process and maximize your chances and minimize your hassle.

 

Disclaimer: The following information does NOT constitute legal advice and is only for general educational purposes.  Each situation is different and specific legal issues usually require additional research and investigation, so do not rely on this article to address a particular legal issue; use this as a starting point to gain a general understanding.  This article, although educational in purpose and substance, nevertheless, might be deemed attorney advertising, and prior results do not guarantee future success.

 

Designated Contacts

 

Only talk to people at the agency, with whom you are allowed to communicate. In New York, one of the most important things about bidding on public projects, is that *only* certain people are authorized to speak with you on any given bid. This comes from a law, enacted by New York State government, codified as NYS Finance Law Section 139, in 2005. The purpose of it was to reduce corruption and favoritism.

 

You know how this works: John Smith, at the Department of Important Affairs for the State of NY needs staples or widgets or whatever. So, his agency advertises in the NY State Contract Reporter. Now, a bazillion people are going to reply to this invitation to bid. But, just so happens, you, widget supplier, know Jane Doe through a shared hobby. Jane Done is John Smith’s boss. So, you think to ask Jane to tell John what a swell guy you are, and how your widgets are the best, and you conduct business with the highest level of care and honesty. Why wouldn’t John Smith want to do business with you? You know the people he knows (his boss) and you really are up and up.

 

Well even if that’s all true, the government has made a decision, in the interests of fairness and transparency, you are not allowed to “go around” the official process, by using connections with insiders. Think of it as prohibiting a form of inside trading or dealing. So, NYS Finance Law 139 prohibits you from contacting Jane Doe to influence the buying decision of John Smith at the Dept of Important Affairs. You have to submit your bid normally, just like everyone else. And, if you have any questions, you can’t even contact Jane Doe, with those, either. No, you must only contact John Smith, the “Designated Contact.”

 

There are of course exceptions and ways to fix the situation if you make an honest mistake, but the government is not kidding. There are severe penalties for intentionally violating this rule, so be careful and make sure you know what you’re doing before you contact people who are not the “Designated Contact.”

 

FOIL is Your Friend

 

One thing you *can* do to get a leg up, is make a FOIL request for prior bids on the same subject, from prior bids.

 

What’s FOIL, and why should you do what I a suggesting? FOIL stands for Freedom of Information Law. Sometimes it’s called FOIA (Freedom of Information Act). Different governments (for instance, NYC, NYS, Delaware, Iowa, the United States government) all handle it differently. Generally, a given agency will have a FOIL Officer, or you can even ask the Designated Contact if you can FOIL a prior bid through them and see what they say (depending on the agency, they might give you prior bids, or direct you to the correct person, or have no idea what you are talking about).

 

Why? Generally, every government agency procures many of the same things over and over and over and over again. Staples, paperclips, painting projects, roof work, construction, janitorial services, consultants, engineers - whatever the government needs. Contracts typically can range from one year to several years - providing there is sufficient budget (a conversation for another day). So, if in 2018, the Dept of Important Affairs asked for widgets, chances are in 2019 or 2020 or 2023 or whatever, they will ask for more bidders to provide widgets again.

 

By getting your hands or prior bids, you can get a feel for pricing and the competition. Even more importantly maybe, if it’s a service contract, like an RFP (Request for Proposals), you possibly can get important ideas on *how* you should (or you how your competition) structure your bid. Agencies may claim that some bids, or parts of them, are protected trade secrets, and you can choose to fight or not about that, but generally, if the bids are old, the agencies will turn them over. Agencies may or may not respond to FOIL requests promptly (or properly). The best thing to do is, is if you know agencies do these bids every few years, FOIL them *BEFORE* you know they will re-bid.

 

To recap, if Dept of Important Affairs asked for widgets in 2018, and it’s a three year contract, you know it is very likely that they will rebid this contract in 2021 (or even 2020 for 2021). So, FOIL the old responses to the bid request, around 2019 or early 2020, and keep them in you file. When it’s time to bid in 2020 or 2021, at least you know who the bidders were last time, and what they bid. And if it’s a service contract, you may see things like how many people they hired to do the job, and what kind materials they said they need, and maybe even *how* they planned to do the job.

 

Next time we’ll discuss some tips on how to maximize your success on bidding.

 

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