Tasks to complete before you start writing the RFP

Generally, you should allow at least 9 months for the RFP and contract process – from the date you start working on the RFP until the date you expect the new contract to begin, particularly for facilities that have not previously used this RFP Template. We recommend that you read through the entire RFP Template well before you need to begin producing your RFP to allow enough time to have meaningful conversations.

Understanding why you need a new RFP will help identify key areas of focus in your RFP development process. Reasons for needing to develop and issue a new RFP typically include the following:

  1. Procurement Practices Require Routine RFP Reissuance: According to your local procurement practices, RFPs must be reissued at specific intervals. Routine procurement practices provide an opportunity to revisit assumptions and expectations, assess what has been working and not working, and consider what would improve outcomes.
    1. Review each section of your current RFP, the original contract including the scope of work, and amendments that have been made to the original contract and gauge your level of satisfaction with each.
    2. If you are not able to affirm satisfaction, then that section, service, or issue
  2. Major Changes to Facility’s Operation: There have been major changes in your facility’s operation or in the environment around you. Examine trends and events over the past 3 to 5 years in the facility and other changes, such as leadership, legislative, population/needs, and service changes. Examining contract amendments that you’ve had to make (especially if they have been frequent) can highlight what some of those trends and events have been.
  3. Outdated or Unclear Information: Your current RFP is based on outdated information, lacks clear expectations, or lacks Key Performance Indicators (KPIs) and quality assurance measures, making it difficult to hold a vendor accountable for service and patient health outcomes.
  4. New Facility or Service: You are constructing a new facility or introducing a new service in an existing facility.
  5. Issues with Current Services: The current contract is not up for renewal but there are concerns about the services being provided due to contractual noncompliance; service delivery issues; resident deaths; internal resident, custody, or healthcare personnel complaints about safety or services; external complaints from family, community providers, or other partners or stakeholders (e.g., court, probation); or litigation. How do the current RFP/contract terms need to be modified to prevent or improve these concerns?
  6. Changes in Standards of Care: There have been material changes in the needed scope of services or in the standard of care such that a “fresh” contract is warranted. Examples of the former include new court orders or settlement agreements that change the scope of service. Examples of the latter include the need to increase treatment for opioid use disorder and the advent of curative medications for hepatitis C.

In deciding how to handle healthcare policies and procedures (P&Ps) for a healthcare services contract, you have three options:

  • The facility has a set of P&Ps that continue from vendor to vendor.
  • The vendor brings its own set of P&Ps, meaning that every time you change vendors, health services will operate under a new set of P&Ps.
  • The vendors bring their P&Ps as part of the contract, but at the completion of the contract the facility adopts them as their own and continues their use from vendor to vendor.

There are two important reasons for maintaining continuity of the policy manual across vendors and time. First, P&Ps should evolve over time because they incorporate changes made due to lessons learned. Wholesale replacement of the policy manual when you change vendors erases those gains and places the facility at risk of repeating errors. In addition, most frontline staff remain in their positions across vendor changes. Changing P&Ps for the sole convenience of the new vendor means that most frontline staff will have to learn and become proficient in a new set of standards. This increases the risk of not following policy, resulting in patient care errors, bad outcomes, and litigation.

Some advocate for the vendor to bring their own P&Ps for legal liability reasons. They argue that instructing a vendor to use your P&Ps, exerts control over the vendor, and the more control you exert, the more a court could find that you share in the liability for bad patient outcomes at the hands of the vendor. However, this argument is weak, as having a strong set of P&Ps reduces the chance of errors in the first place. Additionally, even if you approve the vendor’s P&Ps, you may still share liability under constitutional or statutory protections.

Alternatively, you can take advantage of the upcoming vendor’s expertise by having them bring their standard P&Ps as part of the contract. However, at the completion of this contract you would adopt those P&Ps as your own, modifying them as needed and continuing to use them from vendor to vendor.

Paper vs. Electronic Health Record

There are two types of health records (HR): paper and electronic. Before issuing an RFP, you should determine which of these two is best for your facility. Then determine whether you want to continue this record in perpetuity or switch HRs with each change of vendor. Health care in the community, as well as in corrections, is moving towards electronic health records (EHR). Benefits of EHRs include ease of tracking, maintenance, and compliance with Medicaid requirements, as well as overall lower expense.

For facilities other than the smallest jails with short lengths of stay and minimal services provided in a state that is not requesting a Medicaid Reentry Section 1115 Demonstration Opportunity Waivers (MRS 1115), an EHR is likely the better choice to ensure adequate quality of care. If opting for a paper HR, the RFP will simply require the vendor to continue to use the existing record.

Permanent EHR vs. Switching EHRs

If you already use an EHR or are planning to convert from a paper HR to an EHR, the next major decision you need to make is whether you will use a permanent EHR or will switch EHRs with each successive healthcare vendor.

We strongly recommend that facilities adopt the permanent model, due to staff efficiency and learning curve, better continuity of care and patient safety, and lower cost. However, “permanent” should not be confused with “static.” You should work continuously with the EHR vendor to ensure that the most recent version of the software is meeting your operational needs.

Choice of Permanent EHR

If you elect to use a permanent EHR, you can choose from among four models: (1) purchase an off-the-shelf EHR, (2) lease an off-the-shelf EHR, (3) share an EHR with a community or correctional partner, or (4) construct your own EHR. See the RFP Template for an extended discussion of the options.

The concept of “lumping” vs “splitting” refers to whether you contract with a single contractor to provide all care in all major health domains (medical, mental health, dental, substance use disorder) or whether you carve out one or more domains or subdomains and contract those separately to one or more other vendors or agencies. The “carve-outs” are sometimes one or more of the major domains or subdomains (such as most SUD care separate from methadone treatment).

Generally, lumping is preferable because it enhances communication and coordination of services. The more entities involved in patient care, the more complicated it can be to provide that care, even when the contractors have a genuine interest in cooperating and are using the same EHR.

Although lumping is preferable, at times it is not feasible or cost-effective (such as outsourcing care associated with expensive medications to a health department or other entity that is eligible to buy them at a discount through the federal 340B Drug Pricing Program).

When splitting is appropriate, it will be important for you to foster good communication and coordination between/among the contractors. Such fostering starts with a good RFP and contract for each contractor that articulates the importance of coordination and seeks descriptions of how the contractor intends to achieve the coordination.

The Toolkit is designed under the assumption that you have decided to contract for the full spectrum of health services. However, that may not be the best solution for your facility. What aspect of the delivery of healthcare services are you unable or unwilling to provide using facility employees? Depending on your needs, it may make sense to contract for any number of services, such as pharmacy (managing, ordering, inventorying, and/or dispensing), dental (such as with a company that operates a mobile dental van), dialysis (also via a mobile unit), or telemedicine or telepsychiatry.

It is expensive to provide constitutionally adequate health care in a correctional environment, and resources vary by jurisdiction. The Toolkit and RFP Template offer some ideas for identifying other resources to fill the gap between what you need and what is funded directly by your jurisdiction, such as through engaging community-based organizations.

Determine what relevant services already exist in your community and how they are funded and sustained over time, and develop formal agreements that clearly outline expectations, roles, and responsibilities. This will enable you to tailor the RFP to only those services that are not already available. Pursue grants from philanthropic foundations, your state, corporations, or the federal government, partnering with community-based agencies.

There are several examples of how community-based agencies can play an important role in the correctional care continuum:

  1. Local peer support providers can help support incarcerated individuals through engagement with behavioral health treatment and enhancing transitions.
  2. Educational institutions can adopt corrections-based field placements/internships or rotations in various disciplines.
  3. Local health, behavioral health, and specialty service agencies (e.g., those providing services to people with intellectual/developmental disorders or acquired brain injury) can ensure continuity of care.
  4. The faith-based community and other nonprofit providers can provide critical post-release transition services, including employment, food, transportation, and other supports.
  5. Governmental entities (e.g., state or local department of health, county hospital) or government-supported entities (e.g., public university, Federally Qualified Health Center) can take advantage of reduced costs for expensive medication, through the 340b Drug Pricing Program.
  6. Housing providers can coordinate post-release resources.

Whether you are a large state prison system or a small city jail, the cost of health care for your incarcerated population is likely one of your major expenditures. Thus, when contracting for health care, it makes sense to get it right. This requires expertise in the subject – a subject that is quite complicated, both clinically and legally. If needed, seek input from external experts and screen for potential conflicts of interest. The following are the types of experts you should consider involving in the RFP development process.

  1. Government procurement or purchasing official. If no such expert exists in your facility, consider contracting with one through Institute for Public Procurement or the National Association of State Procurement Officials.
  2. Legal counsel.
  3. Correctional health care expert(s), whether generally or across specialty areas
  4. Custody operations expert who serves as a liaison between custody and health care operations.
  5. IT expert for EHR knowledge.
  6. Peer/neighboring facilities*.
     a. *Reach out to neighboring facilities of similar size for lessons learned and to request RFPs to review after completing the first draft of your RFP. Conversely, we recommend against copying another facility’s RFP. Many existing RFPs are not complete and therefore increase your chances of a bad clinical, financial, or public relations outcome.
  7. Academia
  8. Current and/or former facility residents (“peers”).

Keeping your RFP-to-contract process on time requires two important activities: identifying all the steps in the process and then setting realistic time frames for each.

Identifying the steps

We suggest including the following 15 steps in your timeline. The steps are listed in reverse order because that is the order in which you should plan the overall process.

  1. Contract starts
  2. Contract finalization
  3. Award Letter issued; based on contract agreements
  4. Deadline for protests to selection by nonselected vendors
  5. Notification to bidders of selected vendor (Intent to Award Letter)
  6. Vendor presentations
  7. Notification of vendor(s) that have been selected to make presentations
  8. Deadline for vendors to submit their proposals
  9. Posting of responses to submitted questions
  10. Deadline for bidders to submit written questions
  11. Beginning date for vendors to submit written questions
  12. Bidders Conference and facility tour
  13. Notification of approval or denial of proposed visitors
  14. Deadline to notify facility of interest to participate in Bidders Conference and/or Facility Tour and to submit information about visitors
  15. RFP release

The very first step, of course, is to begin RFP planning and drafting.

Setting Realistic Time Frames

Start by determining the contract start date. For facilities that currently have contracted health care, this is a fixed date (the date the current contract ends).

Next, gather or assess the following information:

  1. Known deadlines for city, county, or state budget cycles. This can be a critically important factor. Inform yourself well ahead of time about your government’s budgeting cycle and rules. Will the responses you receive to the RFP inform the budget or vice versa?
  2. Known or pending events that could require specific staff to focus on other obligations.
  3. The availability of key personnel who will be involved in the RFP process.
  4. The speed with which your workforce can complete tasks.
  5. General process and time frames to execute a contract in your jurisdiction.

Working backward from the contract start date, set dates for each step. Allow 6 to 8 weeks between the RFP release date and the proposal submission deadline and at least 2 to 3 weeks between the date you post responses to written questions and the submission deadline.

Also allow yourself enough time between bidder presentations and notification to bidders of the selected vendor. Individual proposals for a complex RFP can be hundreds of pages long. The due diligence required for a thoughtful review of the proposals can be time consuming.

Once you have constructed your timeline, share it with all internal and external staff who will be involved in the process.

The heart of this Toolkit is the RFP Template. The template is a comprehensive compilation of draft provisions addressing all aspects of the provision of health care by an external entity. The draft provisions attempt to delineate the care that should be provided to meet constitutional requirements, statutory requirements, other requirements established by case law from federal or state courts in your jurisdiction, and the accepted professional standard of care and that also improves individual and public health while controlling overall costs.

More specific instructions on the use of the RFP Template appear at the beginning of the document itself. At this point, you are ready to begin drafting your RFP. When completed, proceed to the next section of the Toolkit.

Tasks to complete from RFP draft to contract signing

To prepare your RFP draft for issuance and contract signing, we recommend the following steps:

You need to appoint members to the Selection Committee who will score the vendors who respond to your RFP. The selection committee should have expertise in the following 7 areas: security, clinical, health care administration, personnel management, contracts, fiscal matters, and IT. To the extent that the needed expertise does not reside within the Committee members, input from experts can be provided to the selection committee as nonvoting consultants.

Members of the Selection Committee should be unbiased (i.e., have no conflict of interest). Consult with legal counsel about how to define a conflict of interest for people involved in scoring the responses.

Most of the national for-profit companies that contract to provide correctional health care scan government agency websites on a regular basis looking for posted RFPs. Nonetheless, it is a good idea to contact them directly to notify them of your posting. One simple way to identify the larger vendors is to scan the list of exhibitors at national conferences.

Contact nonprofit and nontraditional providers directly to notify them about your RFP. Look for the Federally Qualified Health Centers (FQHCs) in your area. You can find a list of them online by state by searching a term such as “FQHC by state list.” Contact your local hospitals, especially if they are public hospitals, university hospitals, or mission or religious-based hospitals (understanding any limitations they may place on services, such as reproductive services).

Also, contact the director of your local health department. Individuals who may cycle through correctional institutions and hospitals are, in many ways, the prime target population of public health efforts. Therefore, some health departments view serving this population as part of their mission. Lastly, local for-profit healthcare providers may be interested in venturing into the correctional space. In addition to full-service providers, it may be worth contacting ones that specialize.

Though not necessary to pair, it is simplest and makes the most sense to conduct the Bidders Conference and Facility Tour on the same day. The purpose of the Bidders Conference is to given vendors information about your RFP and operation and to answer questions. Three topics to highlight are (1) aspects of the RFP that you consider unusual, special, or new, (2) anything unusual about your facility or setting, or plans for future changes, and (3) aspects of the RFP that are of particular importance in the work you are seeking from the vendor. You should also use the Bidders Conference as an opportunity for vendors to ask questions. Answer questions if you know the answer. If you are unsure of the answer or need to confer with others, inform the vendors that you will get an answer. Inform vendors that the questions and the answers (including the answers you deferred), will be posted with the answers to the questions submitted in writing.

The purpose of the Facility Tour is to give vendors information (visually and experientially) about your facility and to answer questions. Generally, you should take vendors to see all areas of your facility that are relevant to the work they may do under the contract.

You need to decide whether to make participation in the Bidders Conference and Facility Tour voluntary or mandatory. There is no “right” decision. Most serious vendors will want to participate in these events, so making them voluntary is reasonable. If you do make them voluntary, consider including attendance at them as a factor you will consider when scoring proposals.

You also need to decide how many representatives from each vendor you will allow to attend. Consider size, attendees with specialized experience, and whether you would like to host multiple tours to accommodate larger groups.

While generally less effective as a sole method to provide useful information to potential vendors, you should consider using recorded, or even live, virtual tours as an adjunct or enhancement to in-person tours, especially for very large agencies with numerous facilities.

Generally, during vendor presentations Facilities allow the vendor to make a formal presentation of their own design and then ask questions based on the presentation and/or written proposal. It is important that all vendors be treated equitably and fairly to avoid claims of disparate treatment and unfair disadvantage. One key factor in equitable treatment is limiting all vendors to the same time limit. Generally, 30 to 60 minutes should be sufficient.

You will allow prospective vendors to submit questions to you regarding the RFP. In preparation for this, you will want to create the submission portal and a website where you can post the responses.

For larger RFPs, the number of questions can be voluminous, sometimes amounting to hundreds. The most effective strategy for reducing the number of questions posed is to provide detailed information about your facility’s general and healthcare operations. Use the RFP Template to guide you through that process. To save you time, it is reasonable to group or combine similar questions and provide a single response.

The timeline we present in this Toolkit and RFP Template assumes you will wait until all questions are submitted and the submission window has closed before attempting to answer questions. There is an alternative approach: rolling questions and answers. In this approach, you can respond to questions and post the responses as you receive them. Both approaches are reasonable.

Depending on the question, you may want to have the response written by, or reviewed by, a specific person on your contracting team. You also may want to have the entire team review all draft responses before you finalize them. Once finalized, all questions and responses should be posted to the website so that all vendors have access to the same information. Some prospective bidders may attempt to contact current employees of your facility to get information about your operation. Educate all facility employees about the RFP question process and instruct them that if they receive such questions, they should not respond and instead direct the inquiry to the mechanism you set up.

In the “Tapping experts…” section, we recommended that you involve internal and/or external experts in developing the RFP. If these experts are not members of the Selection Committee, you should engage the same or similar experts now to help review the proposals, including having them attend the formal presentations, if possible. Ask them to provide their expert opinions on the strengths and weaknesses of the proposals in an unbiased manner based on their expertise and the available facts.

Who should select the best proposal?

The selection of the successful bidder is typically governed by local laws or regulations. Thus, you should seek the advice of your legal counsel or procurement specialist. In most jurisdictions, the selection is made by a committee (“Selection Committee”) appointed by the governing authority (e.g., sheriff).

Reference checking

As mentioned in the RFP Template, we do not recommend asking vendors to submit letters of recommendation from previous or current clients. Instead, we believe it is more productive to proactively seek input from vendors’ clients yourself. If you included this request in your RFP, you will have already received a list of all the correctional facilities with which the vendor has a contract or had one in the past 10 years along with a basic description of the contract.

Strategies for selecting facilities to contact include selecting those (a) with which you’re familiar or at which you have a colleague; (b) that are similar in size, function, and community to your own; and (c) where the contract period seems short, which suggests that the contract may have terminated prematurely. To improve your chances of getting candid input (because of people’s natural hesitancy to commit criticism to a written document or email), we recommend seeking feedback orally and then documenting the results in your notes.

Evaluation of cost

Regardless of the scoring system you use to select the best bidder, you will certainly weigh the cost of the contract in your evaluation. Keep in mind that the bidder’s stated “price” in its proposal is not necessarily the actual cost of the contract to your agency. For example, a bid under a cost-plus costing model can result in different cash outlays by your agency depending on a number of factors that will not manifest themselves until the contract is in operation. Thus, it is important for the selection committee to fully evaluate the financial issues in each proposal.

Advantages/disadvantages of selecting a national for-profit vs. a local or regional for-profit vendor

Facilities sometimes ask whether they should seek to contract with one of the large for-profit vendors that provide services in multiple states or a local, typically smaller, company. Unfortunately, there is currently no formal system for rating or comparing vendors in the correctional health care industry. In principle, larger companies have experience in diverse settings. They may also have a deeper bench of personnel from which they can deploy staff to your site in an emergency, and for the ongoing operational support and training needs of the program. Conversely, a large company has more clients that may be competing for the attention of home office managers. The best prediction of how important your contract will be to the vendor’s home office managers is how the vendor has handled facilities similar to yours in the past. Hence, the importance of checking references cannot be overstated. Compared to larger companies, smaller local companies may have greater familiarity with your community and better connections with local resources that are key to the success of the contract, such as medical specialists, SUD treatment providers, and community health workers. They may also have a greater stake in maintaining their reputation in the community.

Ultimately, you should evaluate each bidder based on the data they submit with their proposal, their presentation, and the due diligence you perform to examine their track records. Past performance is one of the best predictors of future performance. However, vendors’ performance can change over time. Thus, when judging past performance, you should give more weight to recent performance than past performance.

If no vendors respond to the RFP, consider these suggestions on how to proceed.

  1. If vendors became engaged initially (e.g., attended the Bidders Conference and Facility Tour) or submitted written questions, but did not submit proposals, review any issues they may have raised during those interactions. If those issues might have been barriers and your facility would be amenable to modifying the RFP, consider revising and reissuing it.
  2. If no vendors became engaged initially, contact vendors that have, or recently had, contracts with similar nearby facilities because there are vendors who likely were aware of the RFP and considered submitting proposals, but decided not to. Ask these vendors why they did not submit proposals. Again, if those discussions lead you to understand the barriers and your facility would be amenable to modifying the RFP, consider revising and reissuing it.
  3. In some jurisdictions, the maximum budget available for your facility’s health care is public knowledge. In that case, vendors may have declined to pursue a contract because the budget is too low. Consider adjusting the budget, if possible. Also revisit the “Maximize and leverage resources to support your care service continuum” section to see if there are any potential community partners with whom you could partner or to whom you could outsource activities. This would allow you to reduce the required workload for vendors while maintaining the same budget.
  4. If you have reason to believe, perhaps based on the inquiries above, that some vendors might be interested in smaller niches of health care, consider breaking out areas of care (medical, dental, mental health, substance use) and issuing separate RFPs for one or more areas.
  5. Consider contracting with nontraditional correctional care providers such as universities and local clinics or hospitals. Review the “Alternatives to outsourcing the entire contract to a single for-profit company…” section for a discussion of some of these options.
  6. Although a voluntary partnership with a friendly partner is optimal, if your jurisdiction operates an agency that is capable of providing health care, consider approaching the jurisdiction’s governing body to mandate a partnership. For example, if you operate a state prison system, your governor might be able to mandate the state’s health department to become your care provider. Similarly, many larger counties and cities operate public hospitals; the county executive or mayor might be able to mandate that hospital to become your provider.
  7. Finally, consider self-operating the health care program. If you do not already have staff with sufficient knowledge and experience to set up and operate the program, there are correctional health care consultant companies and individuals who can assist. Review the “Should you outsource” section for discussion of self-operation.

Generally, your RFP will form the bedrock of the final contract, including the vendor’s scope of services. In the RFP Template, most of the provisions that define how the vendor and the facility will operate were written so that they can be imported directly into the contract. However, the contract’s content still differs from the RFP in some ways. These additions and/or modifications take place during the negotiation process with the prospective vendor. Below we discuss the ways in which the contract should differ, might differ, and should not differ from the RFP. When negotiating additions or modifications to provisions set forth in the RFP, the negotiator should check with the agency’s subject-matter expert before agreeing to that addition or modification.

Contract should differ from RFP

Negotiations and the final contract should address the vendor’s replies to the various requests in the RFP for specific information. In a number of places, the RFP asked the vendor to describe how it planned to perform a particular task. If those responses were satisfactory, they should be memorialized in the final contract such that the vendor is responsible for executing them as promised in their responses. If some of the vendor’s responses were not satisfactory, those need to be addressed in the negotiation and the final contract.

Contract might differ from RFP

During contract negotiations, some vendors may push to reduce the dollar amount of liquidated damages. You should modify them based on your past experience with contracted care as well as the relative importance of each Key Performance Indicator (KPI) to your facility.

In the RFP you will have asked the vendor to state any “agreement exceptions” (RFP provisions that the vendor cannot agree to). If a bidder stated they were taking an exception to a key provision, most likely you are not in negotiations with that bidder because you would not have selected it as a company with which you want to do business. However, to the extent that the selected vendor took exceptions to provisions that are not key to safe and efficient healthcare operations, you should consider negotiating the terms of those provisions.

Contract should not differ from RFP

You should not negotiate terms in the contract that differ significantly from the terms presented in the RFP. The word “significantly” is, of course, difficult to define, but is best understood by understanding the reason for not negotiating these changes. If the terms of the contract differ significantly from the RFP, this can form the basis upon which unsuccessful bidders can protest awarding the contract to the vendor.

During contract negotiations, some vendors may push to reduce the performance threshold that triggers liquidated damages for a particular KPI (e.g., reduce the minimal level at which they must perform from 100% to 80%). We recommend against lowering the performance thresholds by much, if at all. As with a vendor’s request to remove a KPI, a vendor’s discomfort with the stated performance threshold should serve as a warning sign that the vendor is not confident that it can consistently perform at that level.

During contract negotiations, some vendors may push to remove a KPI altogether. We recommend against removing KPIs unless the activity described does not apply to your facility. The KPIs we suggest in the RFP Template all measure key operations. If a vendor is unwilling to include that KPI, it is a warning sign that the vendor may not be able to successfully perform that operation. One reason vendors may push back on certain KPIs is that measurement of the KPI requires a subjective judgment. Vendors are much more comfortable with objective KPIs because they are simple and straightforward.

However, it is impossible to properly evaluate whether the vendor is providing the contractually required care without subjective measurements. You need a mixture of both objective and subjective KPIs to audit the degree to which the vendor’s performance under the contract is acceptable. The fact that a KPI requires a subjective measurement and that Auditor and vendor opinions may differ does not, however, make the measure itself bad. It does require that you engage an auditor who is knowledgeable and fair and who, when there is a difference of opinion, gives the vendor ample opportunity to explain its point of view. It also requires that when the auditor finds that a vendor failed to adequately perform in a sampled case, it’s because the performance was substandard and not because the auditor would have performed differently.