Upcoming Webinars
Access the latest trends and insights shaping the profession—free for members.
.png)
.jpg)
 (1).jpg)
.jpg)
.jpg)
.jpg)
.jpg)
October 15, 2025
In public procurement, the evaluation process is often where the greatest risks to transparency, fairness, and legal defensibility emerge—particularly in Request for Proposal (RFP) and Request for Qualifications (RFQ) procurements. Unlike Invitations for Bids (IFBs), which are awarded strictly to the lowest responsive and responsible bidder, RFPs and RFQs introduce subjective scoring criteria that invite interpretation—and, potentially, bias.
While discretion is both necessary and beneficial in these methods, municipalities must take deliberate steps to ensure that such discretion is exercised fairly, consistently, and transparently. A failure to do so can result in bid protests, reputational damage, and even legal liability.
Understanding the Risk of Bias
Bias in evaluation can take several forms:
-
Actual bias, where a reviewer has a conflict of interest or pre-existing relationship with a proposer.
-
Perceived bias, where the process appears unfair even if it is not.
-
Structural bias, where the evaluation criteria or process inadvertently favor a particular type of vendor or solution.
In each case, the integrity of the procurement is at risk. Courts and protest bodies often focus less on whether bias actually occurred, and more on whether the appearance of fairness was maintained throughout the process.
Steps to Ensure Objectivity and Legal Defensibility
- Use Clear and Specific Evaluation Criteria
Start by ensuring your evaluation criteria are clearly defined in the solicitation. Avoid vague terms like “innovative” or “industry-leading” without clarification. Each criterion should be linked to a tangible, justifiable need, and the evaluation weighting should be published in advance.
For RFQs, which typically focus on qualifications rather than pricing, it’s especially important to ensure that scoring relates directly to relevant experience, capacity, and staff capabilities—not the reputation or size of the firm.
- Train and vet Your Evaluation Committee
Evaluators should be selected for their subject-matter expertise and impartiality. Require each evaluator to sign a conflict-of-interest disclosure before reviewing proposals. Provide training on how to interpret scoring criteria and avoid favoritism or unconscious bias.
Some agencies find it useful to have a procurement officer or legal advisor attend evaluation meetings to ensure adherence to process and objectivity. NIGP’s Best Practice is for a procurement representative to be present at all meetings, assuring the process is fair and transparent.
- Score Independently Before Group Deliberation
Initial evaluations should be completed individually, with each evaluator scoring proposals independently. This reduces the risk of groupthink or dominant personalities influencing outcomes. After independent scoring, a group discussion can be held to reconcile significant scoring differences—this discussion should be documented.
- Document Everything
When challenges arise, documentation becomes your best defense. Ensure that each evaluator submits:- Individual score sheets
- Justifications or notes for each score
- Conflict-of-interest disclosures
Meeting minutes should capture key evaluation discussions, including reasons for final rankings and any changes to scores.
- Avoid Off-the-Record Communications
Ensure all communications with proposers are conducted formally and in writing. Off-the-record emails or informal conversations can quickly undermine the fairness of the process or create the appearance of preferential treatment.
When Bias Leads to Protest
While not all protests are avoidable, municipalities that maintain transparency, objectivity, and documentation are in a far better position to withstand scrutiny. In multiple cases, courts and administrative boards have upheld awards not because the winning proposal was perfect, but because the process was clearly fair, consistent, and well-documented.
Final Thoughts
Discretion in procurement is not the enemy—unexamined discretion is. RFPs and RFQs offer municipalities the flexibility to select the most qualified or best-value vendor, but with that flexibility comes the responsibility to guard against both real and perceived bias.
By establishing a robust evaluation framework, training evaluators, and maintaining rigorous documentation, municipalities can ensure their sourcing decisions are both effective and defensible—and maintain public trust in the process.
By establishing a robust evaluation framework, training evaluators, and maintaining rigorous documentation, municipalities can ensure their sourcing decisions are both effective and defensible—and maintain public trust in the process.
If you like this post, share here
Other posts in Legally Speaking
Agency Discretion
Kirk Buffington
