Chapter 8 - Describing the Need - Specifications and Requirements

8.9.7 Assistance by suppliers or potential suppliers in developing procurement specifications or requirements

A potential or existing supplier may provide technical assistance to an agency free of charge in developing procurement specifications or requirements. However, an agency may not accept a bid or proposal or award a contract to a supplier who received compensation from the agency to provide assistance in the preparation of the specifications on which the solicitation or contract is based. A supplier who assists an agency in developing specifications or requirements may not disclose to any potential supplier who plans to submit a bid or proposal information concerning the procurement which is not available to the public. In addition, the supplier who provided such development services for payment may not be a subcontractor or partner for the supplier who is awarded the contract or any of that supplier's subcontractors or partners, however far removed. Any independent contractor employed or otherwise paid by an agency to design a project, develop a scope of work, write specifications, or otherwise define contract requirements is also not eligible to compete for or receive the resulting contract.

Specifications or requirements may be provided to potential suppliers for comments and feedback before the solicitation is issued. Commonwealth agencies should leverage the expertise of suppliers in understanding the market for a particular IT good or service. Suppliers may provide helpful information to the agency by identifying restrictive or proprietary features included in the specifications or requirements which could be challenged by other potential suppliers causing delays and/or cancellations. Suppliers can also assist the Commonwealth in understanding what end users really need to achieve their desired business processes, what the commercial and government best practices are in a particular IT area and who the experts are in the marketplace for a particular technical solution.

Section 2.2-4373 of the Code of Virginia provides as follows: "Participation in bid preparation; limitation on submitting bid for same procurement. No person who, for compensation, prepares an invitation to bid or request for proposal for or on behalf of a public body shall (i) submit a bid or proposal for that procurement or any portion thereof or (ii) disclose to any bidder or offeror information concerning the procurement that is not available to the public. However, a public body may permit such person to submit a bid or proposal for that procurement or any portion thereof if the public body determines that the exclusion of the person would limit the number of potential qualified bidders or offerors in a manner contrary to the best interests of the public body."