Services that are excluded from the coverage of an RFP process

When they put prospective matters out to competitive bid, such as all lawsuits in a certain region, most law departments exclude some kinds of matters from the scope of the services. For example, class actions might be outside the bundle.

Many law firms are intensely curious about the amount and kind of work that is withheld. They have a suspicion that the highest value work, the work that is not price sensitive, falls outside of the proposal process scope.

Realistically, law departments are better off keeping some unusual work out of the biddable pool if a fixed fee is sought, so that firms don’t pump up their bids to allow for the possibility of an unusual major matter (See my post of Oct. 31, 2005 about smoking out assumptions.). For all kinds of reasons, various considerations may lead a general counsel to turn to a firm other than the bid winner for a high-profile matter. Even so it is a good practice to assure the proposing law firms that the law department will consider them for the excluded work, although not give them a right of first refusal.

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