Canadian Lawyer InHouse

JANUARY 2016 36 INHOUSE Harricks says he spends every day of his working life dealing with RFPs, and his industry group responds to upward of 200 a year. "My sense is that sometimes companies issue RFPs without knowing what their evaluation criteria are going to be before - hand," he says. But that can lead to problems. Harricks recently sat down with a client after win- ning the bid. "As we were sitting to put pen to paper, it was apparent they were expect- ing us to do a lot more than we were expect- ing," he says. "This gets to the other side of the coin — how to respond to RFPs. It's important in responding to set out what your assump- tions are around the scope of the work — that becomes more of an art than a science sometimes." One of the biggest complaints from issu- ing companies is brochure-ware, says Blake Inkster, director of the proposal response team with Osler Hoskin and Harcourt LLP. "When you put a page limit on the RFP re- sponse, you're going to eliminate that, and the responding law firm has to think about how they're going to fill the space the issu- ing company has given them." Over the past five years, Osler has developed a national centre of excellence for responding to RFPs, which includes pricing specialists and innovation project managers. "We work on literally hundreds of proposal opportunities every year," says Inkster, who has been managing proposal teams and complex proposal responses for more than 15 years. What you don't want, he says, is a scope of work that is so vague that the proposal is littered with assumptions. "That takes away from the sharing risk model. If there's a clear, shared understanding of the goals and objectives of the RFP at the outset, then it allows law firms to scope, price, and accept risk for that work." Without enough detail, a pricing sub - mission could be littered with assumptions, and "that makes pricing meaningless," says Inkster. In some cases, an RFP may have a de- tailed scope of work, but it involves such a complex matter that clarification may still be required. Or, the scope could change. "A change in the scope of work is normal — that's part of the risk that a law firm needs to absorb," he says. "The great thing about the AFAs being used is you can more appropriately share risk between the issuing company and the law firm," says Inkster. "On a complex legal is - sue, the scope of work may and probably will change and that's just a reality. And that's where AFAs or other types of pricing mod- els share the risk instead of an hourly rate." At Borden Ladner Gervais LLP, the firm is seeing more sophisticated RFPs from clients. "We have to really be on our game and really understand what they're asking," says Mat - thew Certosimo, the firm's national leader of the labour and employment group. "But on the other hand I've also noticed — this isn't by any means necessarily widespread — that there's a number of organizations that are going to mini RFPs or informal RFPs." These clients have a narrow focus or want to move quickly, so they issue a mini RFP, which is less formal but still involves inter - viewing external firms. Richard Stock, a consultant with Catalyst Consulting, has been helping in-house coun- sel issue RFPs for the past 20 years. "I've done probably over 100 of them and met with hundreds of law firms during that time," he says. "I think the market has been getting much, much better — certainly the law firms are much better than they used to be." Banks and insurance companies are used to preparing RFPs because they retain professional services of all different types. "Those that don't do it on an ongoing basis may not have the infrastructure to do this by themselves," says Stock. These days, the negotiations include requirements that are much more strate - gic and developmental. "RFPs are not just about the money," says Stock. That being said, you can't disassociate it either, and al- ternative fee arrangements are often part of the discussion. "'Give me your best people with your best discount' is not an RFP. That's kinder - garten stuff," says Stock. More in-house counsel are looking at how the work is being done — to see if it's the right mix of people with the right level of participation, from partners to paralegals. "We have to rethink the distribution of labour we want in line with the complexity of the work," says Stock. "Failure to do that, and to leave that open-ended for the law firm to decide, is no longer sufficiently progressive." Many companies want to inject more pre - dictability into pricing, he says, but it's not always about getting a bargain-basement price. It's about the right trade-off. RFPs, after all, add to a law firm's cost structure. "Frankly, I've worked on RFPs that have taken 100 hours or more to respond to," says Harricks. "Despite the fact we have full-time professionals who do nothing but this … they can take a lot of time. "We have to pay for people to respond to these things — it shouldn't surprise anyone that law firms have fee structures that allow them to recoup the costs." These days, law firms are more sophis - ticated in how they prepare responses for RFPs, says Stock. The debate is not with law firms; it's with the level of sophistica- tion from the client. "If you're not already working for the cli- ent, there's only so much you can ascertain from the RFP documents," says Certosimo. "If general counsel can facilitate — to the extent that it's possible — the providing of sufficient information around the needs of the client, then the response can be much more directed at those needs and we can in fact determine if we're the right people." While the devil is in the details, so, too, are successful RFPs. IH L a w D e p a r t m e n t M a n a g e m e n t We have to really be on our game and really understand what they're asking. MATTHEW CERTOSIMO, Borden Ladner Gervais LLP

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