Negotiating the Contract after RFP award

So, you've successfully awarded a contract after a Request for Proposals process, the contract was included in the RFP so its just a matter of signing, right? If only...

In many Canadian public sector RFP templates, the contract is included and wording to the effect that 'by submitting a proposal, you are agreeing...', few, if any companies realize they are binding themselves to the contract terms & conditions at the same time, AND I've had instances where national/international company policy is to have a legal review of the contract and they request changes. Most of the time their legal counsel is in the US which runs under a different RFP model/law. In Canada, the RFP is a contract, and regardless of their internal company policy, they agreed to the terms & conditions.

So, what happens next? Sometimes that company states the person that signed didn't have the authority to bind them, so you are stuck... Do you agree to changes (if nominal), or do you go to the next company in line?

My standard answer is ASK YOUR LEGAL COUNSEL!! But what have we done?

Situation 1: "Our current policy however, is for our General Council for ABC, Joe Smith, to sign all contractual agreements on ABC's behalf. Joe is pleased to sign your agreement subject to certain minor revisions which are outlined below. If you could incorporate these changes into your standard agreement and return it to me, I will ensure that Joe signs it immediately. If your contractual group needs any clarification of Joe's requested changes, I would be pleased to arrange for a conference call with Joe to discuss his comments."

We booked a meeting between our legal counsel and this company's General Council - and pointed out the items in the RFP that stated:

If submission of hard-copy proposals is permitted, and you choose that delivery method, then a person authorized to sign on behalf of the Proponent must complete and sign the Proponent Section, leaving the rest of this page otherwise unaltered, and include the originally-signed and completed page with the first copy of the proposal.

Proponent Section:
The enclosed proposal is submitted in response to the above-referenced Request for Proposals, including any addenda. Through submission of this proposal we agree to all of the terms and conditions of the Request for Proposals and agree that any inconsistent provisions in our proposal will be as if not written and do not exist. We have carefully read and examined the Request for Proposals, including the Administrative Section, and have conducted such other investigations as were prudent and reasonable in preparing the proposal. We agree to be bound by statements and representations made in our proposal.

Contract
By submission of a proposal, the Proponent agrees that should its proposal be successful the Proponent will enter into a Contract with XYZ in accordance with the terms set out in APPENDIX ___.


Now, someone could argue if the person wasn't authorized to sign, the proposal wasn't compliant...in our case, the company agreed to sign the contract 'as is', and internally added a legal review to all RFP proposal submissions! It's better to request changes to a contract BEFORE the RFP closes!!!

I'll chat about other situations in the coming days...