Impact of social media on public procurement

In some government agencies and municipalities, rules, codes or guidelines restrict the manner and the period for communication between applicants and agency personnel during a public competitive selection process. Miami Dade County, Fla., for example, has implemented what is known as the “Cone of Silence.” The intent of the concept is to channel all communications between applicants competing for goods, services and capital projects through the procurement department. This is done to avoid communications between competing vendors and members of an evaluating committee, end-users or administration personnel. Doing so diminishes the opportunity for inappropriate communication between applicants and agency personnel. This practice reduces the opportunity of an applicant to influence the outcome of a competitive process, and violating the guideline may result in disqualification of the applicant from the selection process.

The explosion in the use of social media has made its way into the public procurement sector. Inadvertently or purposefully, employees or individuals associated with companies seeking to do business with government agencies may find themselves in a precarious situation related to comments posted in social media during a selection process. Recently, I came across an issue related to social media and my institution’s practice of the Cone of Silence doctrine during a selection process for a capital project. Searching similar cases that could provide me with solutions or guidelines on how to handle the situation brought to light a lack of standards and common practices to address this issue. I solicited input or feedback from colleagues in the field but received very limited responses. Those who responded limited their comments to the recognition of potential issues surrounding the matter but had no formal guidelines to address it.

Let’s face it: Some vendors will stop at nothing in trying to influence a selection process. They will call end users, ask for additional information regarding projects, seek inside knowledge of the project from administration personnel, solicit budgets, etc. Some of them will go so far as to discredit competitors by disseminating rumors and horror stories about their performance and personnel. Vendors have the right to solicit additional information but they must do so by following proper communication protocols that guarantee transparency and equality to all competing vendors. Otherwise, the contact is inappropriate. No applicant should try to influence a committee member or administration member regarding the selection of an applicant by direct contact with that individual whether done in person, by phone or by the use of social media tools.

With proliferation of the Internet, many firms have developed web sites and engaged in the use of social media sites such as Twitter, Facebook, My Space and blogs as marketing vehicles. Agencies now have the need to adapt the concept of the Cone of Silence to today’s reality of electronic media. My opinion is that agencies should take steps to monitor or regulate companies, their personnel, consultants and/or retained professionals from posting comments, offering opinions, or engaging in discussions that are directly related to a project during the evaluation or selection process. Agencies may find themselves equally challenged to prevent committee members and administration personnel from reading these postings during the evaluation and selection period; or, worse, to engage and respond to them. An article published recently by Reuters looked into the challenges courts across the nation are facing with jurors communicating, researching and posting opinions about ongoing cases on social media. Several cases have been dismissed due to this issue.

Agencies face the challenge of creating language that addresses their concern about the use of social media by competing vendors. Equally, agencies must educate committee members and administration personnel to be alert to emails and invitations to “friend” or to “like” companies or individuals on Facebook, My Space or LinkedIn. They must be instructed to disregard any commentary or postings they come across regarding applicants while using the Internet during ongoing selections. They should be instructed to report to procurement any occurrence of what may be considered inappropriate commentary regarding the selection or the process at hand. You may want to recommend or suggest to them to avoid social media while engaging in the selection process although this request may be seen as extreme. One should consider if such a request hinders the ability of committee members to research and learn about a particular product, similar projects or a company history and its competitors.

At this time, we do not mandate that companies or professionals not engage in social media during selections. However, we do express an expectation from the agency (noted in writing in the solicitation document) that applicants, whether firms or individuals, refrain from doing so during a selection period. Once that concern has been expressed in a solicitation document, applicants are put on notice about any deliberate attempt to make use of social media as an alternate vehicle to breach the Cone of Silence or communication protocols. It will make them aware that you have the option to invoke that rule should you come across evidence of a deliberate attempt by an applicant to influence a selection. Legal counsel should be involved in drafting the language and in the implementation of these new guidelines. This is not an attempt to prevent applicants from posting online but to persuade them to be careful what they say in social media so it doesn’t come back to bite them. So you thought your teenage kid was your only concern regarding social media? Think again.

Ramon S. Bristol Castrillon, CPPO, FCCM, is assistant purchasing director, facilities/plant maintenance, at Miami-Dade College.