E.2.2 Preparing the terms & conditions

The terms and conditions for an interactive process, including the procedures and 'ground rules' should be included in the broader set of conditions, rights and obligations to which bidders consent. This is necessary to mitigate the manageable legal risks associated with undertaking an interactive process. Conditions can be stipulated by including appropriate references to an interactive process in the conditions of tendering published in the RFP, and/or through the use of a probity and process deed. The method used is a matter for the project team to determine.

By discussing its objectives for an interactive process, government can be equally clear that it is prepared to engage in the process using its best endeavours to facilitate the most efficient possible process, but within clear parameters. This would contribute to building the required degree of trust for the process. In particular, government should reiterate that it retains discretion at the bid evaluation stage to form a view of the best proposal regardless of comments made earlier in the process.

The conditions of participation in interactive processes typically require an acknowledgment by bidders of the specified terms and conditions (including the fact that the interaction does not form part of the evaluation process) and the rights of government.

The terms and conditions of tendering require bidders to acknowledge that they will not rely on the representations made by government during the procurement process, nor will they attribute any loss to comments provided. However, a residual risk to government remains, which needs to be managed by:

• providing the project team with a clear understanding of the ITP and its boundaries at the outset of the RFP period (including a training session if required); and

• providing a clear set of objectives and ground rules for bidders at the start of the process. This will include an explanation that the state's feedback must necessarily be qualified by its inability to form a full interpretation of a bidder's proposal prior to bid submission. The public sector can address particular parts of a proposal separately, but may not be in a position to provide feedback on the 'sum of the parts'. Ultimately, the bidders must take the risk that their proposal as a whole responds adequately to the RFP.