Mandatory and Weighted Criteria

 

Introduction

Mandatory and weighted criteria determine who is successful and unsuccessful for government opportunities.  Understanding how to fully meet each one is critical for both the Province (who is looking for the best vendors and offers) and for vendors (who want to be awarded the contract or purchase order or to be included on the pre-qualification list).

Note that when using processes where the award is made to the lowest priced bid, only mandatory criteria will apply (see Award to Lowest Price). When using processes where the award is made to the highest scoring vendor(s), mandatory criteria usually apply and weighted criteria always apply (see Award to Highest Score).

What should the solicitation document say about mandatory and weighted criteria?  What happens if the document is too vague, or too prescriptive?  What might happen if the vendor misinterprets the requirements?

The answers to these questions depend on the context.  In some cases, the ministry may need to reject a submission without evaluating it, while in others the issue may have an impact on scoring a submission.  The worst case scenario would be a successful submission that isn’t able to meet the government’s needs. 

The following tips for writing mandatory and weighted criteria will help to ensure positive evaluation results for both the ministry and vendors.  This information is provided as general guidance only; ministries may have established processes and language for their specific procurement projects.  If new to solicitation processes or unsure what ministry guidance may be available, contact the appropriate ministry Procurement Specialist.

 

Writing Mandatory Requirements

Ministries cannot award a contract to a vendor who did not meet all the mandatory requirements in the solicitation as of the closing date and time.  If it did, all those bidders / proponents / respondents who did meet the mandatory requirements may have grounds to challenge the decision.  Therefore, ministry staff shouldn’t read or evaluate any submission that fails to meet one or more mandatory requirements, even if the submission is from a vendor known to provide excellent service.

There are two types of mandatory requirements - administrative mandatories that are built into the templates, and specific mandatories that are needed for this one solicitation only. 

Administrative mandatories generally include the need for submissions to be received on time, in English, signed, etc.  These mandatories have been included in templates as they are seen as critical to the solicitation process.  For example, a closing date and time is required to provide a clear point-in-time when all submissions have been received and therefore can be evaluated.  Accepting a late submission - even if it's late by only one minute - creates an unacceptable legal risk.

Specific mandatories can be whatever the issuing ministry determines to be so important that they aren’t willing to consider a vendor who cannot meet them.  Specific mandatories can apply to any criteria – from qualifications / experience to methodology to functionality to price.  As submissions missing a mandatory requirement cannot be considered, keep the specific mandatories to an absolute minimum to minimize the risk of disqualifying otherwise acceptable submissions.

Mandatory requirements are not evaluated – there should be no need for interpretation or judgement as to whether or not one has been met.  Administrative mandatories in the corporate templates are good examples of this, as each one is clear. 

Specific mandatory requirements are not always needed, but when they are, write them as pass/fail, yes/no criteria where the decision to accept or reject is obvious.  If a mandatory requirement might or might not have been met, ministry staff have a high-risk decision to make – to reject the submission and risk the vendor who wrote it complaining that it should have been accepted, or to accept the submission and if it’s successful, risk other bidders / proponents / respondents complaining that it should have been rejected.  Do not assume that other bidders / proponents / respondents will not be aware of the decision to accept or reject a submission; anyone can request all types of government information - including specifics as to how the successful submission met all mandatory requirements - through the Freedom of Information and Protection of Privacy Act. If any doubt exists as to whether or not a submission met all mandatory requirements, contact the ministry’s Procurement Specialist or Legal Services for assistance.

Do not confuse contractual mandatory requirements with solicitation mandatory requirements.  Contractual mandatories are those activities that the contractor must do as part of the delivery of services; solicitation mandatories are something that all bidders / proponents / respondents must do in order to be considered for the opportunity.  For example, the contract may state that the contractor must carry specific types of insurances.  However, a vendor who currently does not have those insurances should not be disqualified from the competitive process.  To meet the contractual obligations, the successful bidder / proponent / respondent will need to have the specified insurance prior to signing the contract.

Language is important for mandatory requirements.  The corporate templates for Requests for Proposals, Short-form Requests for Proposals, and Request for Qualifications all define the word “must” as pertaining to a mandatory requirement.  Therefore, it’s important not to use “must’ unless it is defining a mandatory requirement that all bidders / proponents / respondents must demonstrate that they meet once the solicitation closes.  When describing a contractual mandatory requirement (one that only the contractor must meet), use the word “will” instead, as in “The Contractor will….”.  Before issuing a solicitation, search for the word “must” to ensure it’s only being used to describe mandatory requirements that all bidders / proponents / respondents must meet.

To illustrate the issues with mandatory requirements in solicitation documents, here are some examples of how to edit the language to clearly state what is meant:

  1. “Respondents must demonstrate the ability to manage large volumes of monthly intakes.”

This mandatory requirement includes the subjective words “demonstrate the ability”, and “large volumes”.  Subjective words are open to interpretation, which could result in a dispute as to whether or not the mandatory has been met.  A better way to write this mandatory is as follows:

“Respondents must have experience within the past five years (as of the closing date of this Request for Qualifications) managing an average of 30 intakes per month over no less than a six month period.”

  1. “Bidders must have the xyz certification.”

The difficulty with this mandatory is that it is not time-bound.  A vendor may have had the certification in the past, or they may be in the process of getting it now.  To avoid any issues with interpreting whether or not it has been met, this mandatory should be reworded using one of the following two options:

“Bidders must have a valid xyz certification as of the Closing Time of this Invitation to Quote for Services (ITQS).  The Contractor will maintain this certification over the term of the Contract.”

Or

“The Contractor will maintain a valid xyz certification over the term of the Contract.  Proof of this certification will be required before the Province signs the Contract with the successful Bidder.”

The first option makes it clear what all bidders are required to have, but the solicitation document should also give instructions on how to demonstrate meeting the mandatory (e.g. a photocopy of the certification, the certification number, or just a statement that the bidder has it).  The second option means that the Province and the bidders do not need to address the certification process until contract finalization, while ensuring that the Province is not obligated to sign a contract with a bidder who does not have it.  Therefore, the second option is not a mandatory requirement of the solicitation, but rather a contractual mandatory.

  1. “Proponents must deliver status reports monthly to the Ministry.”

This mandatory requirement, if considered literally, could be interpreted to mean that a vendor not currently providing status reports to the ministry is disqualified from the process.  That’s not likely what was intended here, nor would it be fair as it demonstrates a bias for current contractors.  Instead, this should be written as a contractual mandatory, as demonstrated below:

“The Contractor will deliver monthly status reports to the Ministry that includes an overview of the past month’s activities, a comparison between actual and planned activities, and an explanation for any discrepancies.”

This change makes it clear to all vendors what would be expected if they had the contract, but does not stop any of them from participating if they are not currently working with the Province.

  1. “Proponents must state their agreement to deliver monthly status reports to the Ministry.”

Although this is written as a mandatory requirement that any vendor could meet, it is creating an unnecessary risk.  If a vendor intends to provide these reports but forgets to include the statement, the Province must reject the submission.  Instead, the requirement should be written as a contractual mandatory, similar to the suggested wording used in item #3 above.

 

Writing Weighted Requirements

Weighted (or desirable) requirements refer to the parts of a submission that are scored, and only apply to those solicitations that are awarded to the highest score(s).  The solicitation document should identify the basic requirements that are being sought, which is used as a benchmark for a “meets-requirements” score (e.g. 6/10).  This gives clarity to vendors as to what the ministry is seeking, and allows evaluators to score higher for a submission that exceeds or lower for a submission that doesn’t meet the benchmark.

Benchmarks should be described that are specific to everything requested in submissions.  Ensure that there are no requests for information that do not include a benchmark, and no benchmark that does not relate to information that is requested.

For example, many solicitations request proponents or respondents to describe their similar, related, recent experience, but do not explain what would be considered as similar, related or recent.  To add this clarity, a weighted requirement regarding experience could be written as follows:

“Proponents should have three (3) or more years’ experience within the past seven (7) years (as of the closing date of this RFP) delivering services of a similar scope and complexity.  Similar scope and complexity means:

  1. Providing services to a customer who has at least 100 discrete urban and rural locations;
  2. Visiting each of the customer's locations at least once on an annual basis;
  3. Delivering training to the customer's staff using two or more methodologies, such as but not limited to webinars, on-line guides, live meetings, classroom sessions, etc.; and
  4. Delivering comprehensive reports that document the progress made at each office and make recommendations for further improvement."

By defining what similar, related and recent means, vendors now have a clear picture of what it will take to be successful in the solicitation.  This may result in discouraging those vendors who clearly do not meet the requirements from participating, which will save time for both the vendor and ministry.  In addition, clear benchmarks help to support the award decisions made, as the ministry can demonstrate transparency in what was evaluated.

Weighted criteria often include price, although this is not always necessary.  Unlike other aspects of evaluation – where the submissions are evaluated against established criteria – price usually compares one submission to another.  Therefore, describe what is to be included in price and how it is to be evaluated to ensure fairness in the process. 

Weighted criteria can be organized in a variety of ways to suit the specific solicitation.  For Requests for Qualifications, weighted criteria usually fall into headings such as Consultant Qualifications, Organizational/Consultant Experience, Specialized Experience, and/or Price (see Requests for Qualifications for more information).  For Short-form Request for Proposals and Requests for Proposals, weighted criteria often include Experience/Capabilities, Approach/Methodology, Solution, Functionality, and/or Price.  However, these are suggestions only; ministries may use other criteria applicable to their solicitation.

 

Determining Point Allocations and Minimum Scores

All solicitations using weighted criteria should disclose the breakdown of points.  This breakdown can be provided at a high or detail level; however, the breakdown disclosed in the solicitation document (including any addenda) cannot be changed after closing.

Be sure that the breakdown of points can be easily matched to the benchmarks and information requested for the weighted criteria.  Consider using the same headings, and referring to the specific heading numbers when disclosing the breakdown.

The overall points allocated often add up to 100, but could be a different number.  For solicitations that request a considerable amount of information, an overall allocation of 1,000 may make it easier to allocate the points to each section. 

If minimum scores apply, they must be disclosed in the solicitation; one cannot be applied if it was not disclosed.  Awards cannot be made to any proponent / respondent who did not meet one or more minimum scores.  Therefore, be careful when establishing minimum scores, as they will result in no successful proponent / respondent if no one meets them all.  To avoid this situation, the minimum score should not exceed your meets-requirements benchmark.  For example, if a submission just meeting the benchmark scores 6/10, the minimum score(s) identified should not exceed 60% of the available points.

Minimum scores can be applied to any or all categories, except for price.  It is considered unfair to have a minimum score for price because proposed prices are usually compared to each other rather than to a benchmark established beforehand.

To maximize the effectiveness while minimizing the risk of no successful proponent / respondent, minimum scores should not apply to all criteria.  Instead, ministries should assign the most points to the category that is most important for the success of the contract(s).  Apply a minimum score to a category that is the next in importance but is weighted lower.  This strategy is likely to get the best results, as a proponent / respondent struggling to meet the requirements in the heavily-weighted category is unlikely to score high enough to be successful, and a proponent / respondent that does not meet the minimum score cannot be successful. 

 

Shortlist Processes

Shortlist processes are not for every solicitation, but can be valuable in the right circumstances.  When determining whether or not to include a shortlist process, consider the following:

  • The dollar value of the contract (shortlist processes are time-consuming and represent additional costs to both the proponent / respondent and the ministry);
  • The need to review more than the written submissions to determine who should be successful; and
  • The time needed to conduct a short-list process.

A short-list process is typically offered to only the top-scoring proponents / respondents (e.g. the top three, or everyone who scores within 10% of the highest score).  It can be structured in a variety of ways, including but not limited to interviews, presentations, systems testing, site visits, etc.

Be clear in the solicitation document if a short-list process applies or not – do not use vague words, such as it may or might apply, unless the circumstances for when it would apply is clear. For example, a solicitation could state that if there are fewer than 15 points between the highest scoring and other proponents / respondents, a shortlist process will be conducted that includes all these proponents / respondents.  Without very clear language as to when a shortlist process will or will not occur, the decision may be perceived as a manipulation to award to government’s preferred proponent / respondent.

If including a shortlist process, assign points to it (including a minimum score, if desired) in the solicitation document.  Provide an overview of what will be expected, including who should attend and the expected timelines if the proponents / respondents will be expected to travel.  Details of the shortlist process can be developed once the shortlisted proponents / respondents are known.