Also known as: RFPs · request for proposal · requests for proposals · request for proposals
Written by attorneys — see sources below.
A formal solicitation issued by a government agency or other entity that invites qualified parties to submit detailed proposals for performing specified work or supplying services. The process typically evaluates submissions on criteria such as experience, expertise, cost, and qualifications rather than political considerations.
Alec learns that a city arts commissioner will form a panel to select outside counsel for a public investigation. His firm submits a proposal in response to the city's RFP while Alec simultaneously organizes a donation drive for the commissioner's reelection campaign. The timing and messaging linking contributions to the selection process raise questions whether the contributions were made to obtain the engagement.
After a county rezones a former social services site to R-T, it issues an RFP requiring any bid to meet a thirty-million-dollar minimum. A nonprofit housing developer analyzes the new zoning restrictions and concludes that building affordable units would be financially impossible at any price. The developer therefore cannot submit a qualifying proposal under the RFP terms.
In 2002 Nassau County faced a budget crisis and decided to sell excess property, including the approximately 25-acre Social Services Site located within the Village of Garden City and zoned P (Public). The County asked Garden City to rezone the site so it could be sold to a private developer for at least $30 million. Garden City formed a P-Zone Committee, retained the planning firm BFJ, and after more than a year of study and public forums proposed R-M zoning that would have permitted up to 311 multi-family apartment units or 75 single-family homes. Public hearings held in January and February 2004 drew strong resident opposition focused on traffic, schools, and the possibility that R-M zoning would allow affordable housing and change the character of the overwhelmingly white village, whose minority population was only 4.1 percent. In response, BFJ and the Board of Trustees abruptly abandoned R-M zoning in May 2004 and adopted R-T zoning that restricted multi-family housing to less than 15 percent of the site and only by special permit. The Board enacted Local Law No. 2-2004 on June 3, 2004. Nassau County then issued an RFP under the new R-T zoning requiring a minimum $30 million bid. MHANY (then NYAHC) determined it could not feasibly build affordable housing under R-T restrictions and submitted a non-conforming protest proposal. The County awarded the site to Fairhaven Properties for $56.5 million to build 87 single-family homes. Plaintiffs later prepared pro formas showing they could have bid competitively under the rejected R-M zoning and that the resulting tenant pool would have been 18 to 32 percent minority. On May 12, 2005, ACORN, NYAHC, and individual plaintiffs sued Garden City and Nassau County alleging violations of the Fair Housing Act, Sections 1981 and 1983, and Title VI. ACORN disbanded in 2010; MHANY continued the suit and NYCC intervened. The district court granted summary judgment to Nassau County in February 2012, conducted an eleven-day bench trial against Garden City in 2013, and on April 22, 2014 entered judgment finding Garden City liable and ordering injunctive relief. Both sides appealed.
A lawyer violates the rule when the contribution or solicitation would not have occurred but for the desire to obtain or be considered for a government legal engagement. Purpose is determined by examining all circumstances, including timing, targeting of donors connected to the matter, and whether the engagement followed a merit-based RFP process free from political influence.
Supporting sources
No. The rule contains an exception for engagements awarded on the basis of experience, expertise, professional qualifications, and cost following an RFP or similar process free from political contribution influence. If the facts show the contributions were made for the prohibited purpose, the exception does not apply even when an RFP was used.
Supporting sources
The test asks whether the lawyer or firm would have made or solicited the contributions but for the desire to obtain the engagement. A consistent pattern of prior contributions to the same candidate or aligned causes supports the conclusion that the contributions would have occurred regardless of the RFP opportunity.
Supporting sources
The rule excludes substantially uncompensated services, engagements awarded on merit following an RFP process free from political influence, and rotational appointments from a list compiled without regard to contributions. These exclusions preserve lawyers' ability to participate in the political process while protecting the appearance of merit-based selection.
Supporting sources