An increasing number of internal law departments are turning to requests for proposals (RFPs) when it comes farming out legal work. For some, the RFP process involves simply calling a few managing partners before choosing one firm.
Other companies, however, e-mail RFPs to a wide universe of firms to secure the best rate for routine legal work. And a growing number of organizations use RFPs to find the most capable lawyers to handle significant volumes of work or tackle high-stake projects. For these companies, the process can be a huge undertaking, so we’ve rounded up a few best practices and pitfalls to keep in mind when embarking on an RFP.
Be specific when explaining your needs
The RFP process often operates like a dating service where law departments seek out eligible law firms with common interests and then eyeball down the most alluring candidates in a face-to-face interview before making a commitment. But if you aren’t specific enough about the work, what you’re looking for, and how the candidates should respond, you could end up on a series of very awkward dates, says Susan Hackett, senior vice president and general counsel at the Association of Corporate Counsel.
For instance, if your specifications are too vague, a firm may send lawyers to an interview to pitch services that you don’t want, you could find out the firm doesn’t even offer the service you require, or a firm might send its schmooze-loving relationship partner to a meeting when you were expecting to meet the litigators who might be handling a case.
When the City of Mississauga recently embarked on its first comprehensive RFP to shortlist law firms to handle overflow work and fill in gaps in the in-house department’s expertise over a five-year period, the city’s team wisely divided up the categories of work and created very clear and specific criteria. Law firms could bid on any number of categories or on the entire package.
The instructions about what type of material respondents should provide was also specific and defined. For example, the city asked for a guaranteed rate for all team members, and allowed respondents to incorporate an escalation rate over the relevant period, says city solicitor Mary Ellen Bench. The vast majority of the 53 respondents followed instructions. It was obvious that the few firms that sent in pre-packaged information or didn’t follow instructions had not misread the instructions — they simply ignored or didn’t even read them, says Bench. “We got one response from one of the large firms that we just couldn’t understand. The language was so circular that we couldn’t figure out what their rates were beyond year one.”
Of course, you walk a fine line when asking law firms to assemble information, says Hackett. Obviously, you need firms to customize material in order to properly evaluate them, she says. “If they just send in a brochure, you’re really no better off than if you just searched the internet for them.”
Manage your reputation
But asking for too much can lead to problems. “If you ask firms to assemble great amounts of material and then don’t give them the time of day, you can create bad feelings when there previously were none even though you haven’t retained that firm. You’ve got a reputation to maintain in the marketplace and you may want to call them in the future.”
Now, some companies elect to compensate firms for taking part in the process, but that’s usually confined to situations where the stakes are high and the corporation is speaking to a small number of law firms where there is no previous relationship, says Hackett.
Invite the right players to the party
Identifying where to send your RFP is another crucial factor to consider and can make or break your RFP. Do you want to send it to a small number of pre-selected firms or mass e-mail it to 200 people?“One of the best ways to do this is to talk to your peers,” says Hackett.
“Chat about that before you spend all of the time involved in reviewing firms only to find out you didn’t actually ask the right people to the party.”Beware — it’s possible to get stung by sending out an RFP that includes sensitive information only to find one of the firms on the receiving end is representing the other side. “That’s the kind of thing that gets folks fired,” says Hackett.
Beware of conflicts
This deadly pitfall can be avoided by calling firms ahead of time, giving them names of the parties involved, and asking them to run a conflicts check. When sending an RFP to a larger group of firms, companies generally send out a letter explaining the matter in general terms that asks the firms to express interest in receiving the RFP once they’ve presumably done their own conflicts check.
When it comes to sensitive matters, the RFP can be a way of keeping a record that your organization carefully selected independent firms and that truly independent legal advice was provided.
This is a key reason why the public sector frequently engages in the RFP process. The City of Mississauga used a points-based scoring system to evaluate candidates using the same criteria, which pre-emptively allays concerns about whether the city hired someone’s golf buddy or a firm with political connections, Bench explains.
Get a work plan
The city’s RFP also asked firms to supply a work plan. “It allowed us to see if they are really just promoting one person, or if they have a team that’s got a range of experience, so you have access to junior lawyers for the more basic work and senior lawyers for the more complex work,” says Bench.
The city’s evaluation team also considered firms’ willingness to offer added value. Some firms offered to conduct pro bono training seminars, some offered specific training packages, others left it up to the city to set the agenda.
Some firms were open to pairing internal junior lawyers with the firm’s senior lawyers on certain files, which is an excellent way of keeping costs down while training internal staff. And one firm offered to pay for the city’s lawyers to attend any conferences they were speaking at.
Check the talent
Of course, there’s no denying that fiscally conscious managers use RFPs to keep costs in check (Mississauga’s RFP asked firms about their willingness to consider block fees for some work). But that’s not the only driver. RFPs are simply a good way of assessing whether a firm has got the right talent at a price that’s offering value, says Hackett.
In most situations, it’s impossible to divorce these two drivers, says Hackett, except when companies are looking for firms to handle procedural or repetitive work. For instance, when a bank looks for firms to send out thousands of standard letters to people who have defaulted on loans, the process becomes a true bidding war.
In-house lawyers tend to either love or hate the RFP and the majority of legal departments still don’t use them. But a significant number of organizations — including but not limited to insurance companies, banks, municipalities, and some aspects of the lucrative oil and gas industry — do rely on the RFP to source talent.
“Even if some people snort at the idea right now, they always sort of keep it in the back of their mind that there may come a time when this is what they end up doing for whatever reason,” says Hackett.