Should You Incorporate RFPs and Proposals into the Final Contract?

What documents should be incorporated go into a final contract?  Should it include, by reference, all of the terms of a Request for Proposals (RFP) issued by a public agency?  Should it include the actual proposal submitted by either consultants or contractors in response to the RFP?

Some agencies make it a practice to incorporate the RFP and proposals into the final contract.  From my perspective, I think such a practice raises the following issues:

• RFP Scope of Work May Be Preliminary:  An RFP often includes only a preliminary or limited scope of work for the project that may be modified by the successful proposal, by time, and by contract negotiations.  Sometimes the RFP may include performance milestones and a schedule that may change by the time of contract execution.  Including the RFP by reference as part of the contract sets up a potential conflict between the scope of work in the contract and the terms in the RFP.

• Procedural Nature of RFPs:  An RFP, by its nature, consists of a lot of procedural matters such as the selection process and evaluation criteria that are not, in fact, contractual terms or obligations of the selected contractor or consultant.  Including the RFP by reference as part of the contract isn't necessary or important.

• Proposals Are Proposals and Not Contracts:  In submitting a proposal, a firm submits their proposed approach for completing the work.  But during contract negotiations, some of those concepts may be modified or dropped from consideration.  In addition, proposals are not written in contractual scope of work language.  Including a proposal by reference as part of the contract may set up an ambiguity or direct conflict between the proposal and other provisions of the contract regarding what the scope of work actually is.

Make the Contract Self-Contained and Complete:  If there are provisions in your RFP or the proposal of the successful firm that are important contractual terms, scope of work descriptions, performance expectations, or scheduling issues, take the time to extract these relevant items from the RFP and proposal, and directly include them in the appropriate location in the actual contract. Make sure the language you develop is contractual so that you can hold the firm you are contracting with accountable for the work.

Consult With Your Attorney:  As you evaluate your agency's practices and whether to incorporate the RFP and proposals into your contracts by reference, or take the relevant items from these documents and include them directly in your contract, make sure you talk with your attorney and other policy makers in your agency.

Comments:  I am interested in your observations on this question and your practices.  If you have additional reasons why you do not include the RFP and proposal in your actual contract, or if you have reasons why you do include them in your contract, please contact me.