Running an RFI or RFP

The legal framework

The procurement stage, before a contract is signed, sets up everything that follows. It is also the part of a deal that rarely sees a lawyer. The legal rules depend on who is buying.

Private buyers. A private company running an RFP has wide freedom. There is no obligation to award a contract, and the RFP is usually not binding as such. The new Civil Code (Book 5) nonetheless requires parties to negotiate in good faith, and a party that breaks off negotiations abusively, for instance after leading a bidder to incur large costs on a deal it never intended to conclude, can face liability. Statements in an RFP can also carry into the contract, so say expressly what is non-binding.

Public buyers. Public authorities and certain bodies are subject to public procurement law (national law based on the EU procurement directives), with strict rules on publication, equal treatment, selection and award criteria, and remedies for losing bidders. This article concerns private procurement, but the discipline of defined criteria and a documented evaluation helps everyone.

Confidentiality and trade secrets. Both sides share sensitive material. The buyer discloses its requirements and sometimes its data, and vendors disclose methods and pricing. Information qualifies as a trade secret under Directive (EU) 2016/943, implemented in national law, only if reasonable steps are taken to keep it secret, so a confidentiality agreement before detailed exchanges is such a step. Personal data shared in an RFP (for example, staff data of a business to be outsourced) must be handled under the GDPR.

Competition law. Bidders must not coordinate their bids, and a buyer should avoid sharing one bidder's pricing with another. Strict separation between bidders protects both the process and the buyer.

In practice

RFI, RFP and RFQ

A request for information (RFI) gathers high-level information to understand the market and shortlist vendors. A request for proposal (RFP) asks shortlisted vendors to propose a solution and terms. A request for quotation (RFQ) asks for pricing on a clearly defined requirement. The right instrument at the right stage keeps the process efficient and the answers comparable.

Embed your contract terms in the RFP

The most effective tactic is to attach your draft contract terms to the RFP and ask vendors to confirm acceptance or list exceptions as part of the bid. This brings the hard points forward while there is competitive tension, rather than after the winner is chosen and leverage is lost. The terms you attach are the standing terms discussed in Master Services Agreements and SOWs. Responses with exceptions can be reviewed with our contract review, which compares them with a playbook clause by clause.

Evaluation and audit trail

Define and weight your criteria before responses arrive and score them consistently. A documented evaluation protects you if a bidder challenges the outcome and keeps the decision focused on what matters. Where many vendors respond with sensitive information, a controlled environment such as our data room can isolate each bidder's submission and manage questions and answers.

From preferred bidder to signature

Once you have a preferred bidder, keep the competitive tension until the contract is signed. Confirm the terms accepted in the bid, finalise the statement of work, and do not let the vendor reopen points already conceded. A short, time-boxed final negotiation preserves momentum.

An example

A Hasselt manufacturer wants to replace its ERP system. It sends an RFI to eight vendors, shortlists three, and sends an RFP with its draft licence and services terms attached. Two bidders accept most terms but list exceptions on liability and data ownership. The third accepts everything except an uncapped data-breach indemnity. Because these points surfaced during the bid, the manufacturer negotiates them with all three still in contention and signs a contract it could have only dreamed of after selecting a winner.

Frequently asked questions

Is an RFP legally binding?

Usually not in itself, but it can create obligations, especially in regulated procurement, and statements in it can carry into the contract. Treat it as a document that will be relied on and say expressly when something is non-binding.

Why put contract terms in the RFP instead of negotiating later?

Leverage. While vendors compete, they are more willing to accept your terms. Once a winner is picked and the others have left, that leverage is gone.

Do we need an NDA before sending an RFP?

If the RFP contains confidential requirements or data, yes. A mutual NDA before detailed exchanges also supports trade secret protection.

Who owns the ideas in a vendor's proposal?

The vendor, unless agreed otherwise. The RFP should say whether you may use ideas from unsuccessful bids, and most vendors will want it to say you may not.

How this connects

Procurement is the front end of our commercial contracts and transactions work. The resulting contract is drafted with our Document Studio. For the wider context, see Commercial Contracts: a Map.