Ethics and RFPs

A successful project requires a mutually supportive relationship between public agencies and private consultants, including communication and honesty throughout the project, starting with the Request for Proposal (RFP).

Yes, even before a project is undertaken — during the period when the project is bid out and proposals are received — planners have key ethical responsibilities to consider.

The following are real-world case studies relating to the RFP processes. They include specific aspects of the AICP Code of Ethics and Professional Conduct that should be reviewed when considering a planner's appropriate courses of action. The discussion points in each case study are taken from actual discussions that have occurred during National Planning Conference sessions, while the conclusions were developed by the authors.

Case #1

Scenario

After a public agency publishes an RFP, a planner at the agency reaches out to a consulting firm and encourages them to bid. He specifically tells the firm: "We're looking for your approach as it's different than what we've worked with before."

Code of Ethics Considerations

• Principle #2c: "We shall avoid a conflict of interest or even the appearance of a conflict of interest in accepting assignments from clients or employers."
• Rule of Conduct #8: "We shall not, as public officials or employees, engage in private communications with planning process participants if the discussions relate to a matter over which we have authority to make a binding, final determination if such private communications are prohibited by law or by agency rules, procedures, or custom.

Discussion

• Does it show some form of favoritism if the agency only reaches out to one firm in this manner?
• Is it a conflict of interest if the agency reaches out to multiple firms?
• Is the key issue that the RFP is released before the planner reaches out to the firm?
• Are there any other ethical implications if the agency (or its staff) speaks to the firm before publication?

Conclusion

If the reaching out to a firm was done before the RFP was published, the agency should consider addressing this request in the RFP; that is, the RFP should say the agency is looking for an innovative approach. Another approach is for the agency to consider "innovative" approaches or techniques as something the proposals will be scored on.

In dealing with an RFP, you need to ensure that all communications between agencies and firms are professional and transparent. Once the RFP is published, you should avoid discussing: the RFP, any desired qualifications, or the agency's "desires." You only should accept written questions during the RFP process, and you need to publish all of the questions and responses for all of the firms. This will all help to avoid "even the appearance of a conflict of interest," per the Code of Ethics.

Case #2

Scenario

An agency releases a Request for Qualifications (RFQ) that highlights the need for a small team that will be able to focus on this project. After the Qualifications packets are received and reviewed by the agency, one firm is selected as the top respondent, due to its streamlined and focused team.

The agency then requests the firm to provide a full scope and fee. As part of its response, the size of the firm's project team doubles in number. Feeling burned, the agency now is forced to spend significant time negotiating the scope and fee, instead of proceeding with the project.

Code of Ethics Considerations

• Rule of Conduct #10: We shall neither deliberately, nor with reckless indifference, misrepresent the qualifications, views, and findings of other professionals.
• Rule of Conduct #12: We shall not misstate our education, experience, training, or any other facts that are relevant to our professional qualifications.
• Rule of Conduct #15: We shall not accept work beyond our professional competence unless the client or employer understands and agrees that such work will be performed by another professional competent to perform the work and acceptable to the client or employer.

Discussion

• It is possible that expectations could change during a project; for example, a council or board could turn over and the actual work scope is greatly changed.
• Should you leave an open-ended part of the contract to allow for flexibility with a la carte work?
• Consultants often believe that agencies need to be more realistic when asking for more or different work that has budget implications.
• In contrast, agency staff often think consultants need to be more mindful when crafting a scope and budget, to account for contingencies. This is particularly applicable when the project team or fee is very different from what is originally proposed.

Conclusion

Specificity must be your friend. If an agency desires a small team on a project, then that information needs to be included in the RFP/RFQ. And, if a firm knows it will need a larger team to complete a project, then that information needs to be conveyed in the firm's response to the RFP/RFQ.

From a non-ethics standpoint, this scenario may illustrate why some feel it is often better to issue an RFP — with a scope and budget — rather than requesting a statement of qualifications (RFQ).

Case #3

Scenario

An agency releases an RFP. After reviewing the responses, the agency selects two finalists, while noting that both firms are listing the same large project as a reference. During the interviews, it became clear that a staff member — one with key expertise applicable to the agency's project — had switched between firms after completing the sample project. Now both firms are claiming the project as their key experience for this project.

Code of Ethics Considerations

• Rule of Conduct #1: We shall not deliberately or with reckless indifference fail to provide adequate, timely, clear, and accurate information on planning issues.
• Rule of Conduct #12: We shall not misstate our education, experience, training, or any other facts that are relevant to our professional qualifications.

Discussion

• Does the project work stay with the planner or with the firm?
• Can the planner's new firm claim specific experience if the planner is now employed with another firm? This may depend on the size of the project team. Was the project only worked on by a single person, or were there other team members who still work at the firm?
• These problems also can happen when a Proposal moves from a planner to the firm's marketing department. How do we, as planners, ensure that words aren't twisted to create an unintended ethical conflict?

Conclusion

A proposal needs to specify the role of the firm in a prior project, and whether existing or past team members were involved. Agencies need to direct questions about this during an interview phase — or while checking references — to determine a staff member's level of involvement in a reference project.

Agencies also may want to consider creating a template that requires firms to show the specific roles of staff members on projects that are used as references.

This article is adapted from the author's presentation at the 2017 National Planning Conference in New York City, entitled "RFPs and Responses for Successful Projects."

Top image: Thinkstock photo.