For purposes of whether to use RFPs, “nondiscretionary legal spending” is nonsensical

A consultant, quoted in InsideCounsel, June 2008 at 66, asserts that “work that involves discretionary spending would be more prone to the RFP process than litigation work, where nondiscretionary spending is a given.” Adding more, the consultant claims that “Spending around compliance training for employees, litigation readiness, content management and document management systems are all better candidates for the RFP process than nondiscretionary spending where you want to find the best qualified candidate and spending isn’t critical.”

Even if there were some sense in which litigation expenditures are nondiscretionary, in-house lawyers still have an obligation to steward the money of their client. Spending is still critical. An RFP process is a tool for cost management. And, contrary to the view expressed, an RFP may well be even more desirous for huge and expensive matters such as major lawsuits.

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