Best Practices
for Government
Procurement of Data-
Driven Technologies
A Short Guidance for Key
Stages of Government
Technology Procurement
Rashida Richardson
May 2021
Preferred Citation: Rashida Richardson, Best
Practices for Government Procurement of Data-
Driven Technologies (2021).
2 Best Practices for Government Procurement of Data-Driven Technologies
A Short Guidance for Key Stages of Government Technology Procurement
The Center for Law, Information and Creativity (CLIC) combines the study of innovation and
creativity with Northeastern University School of Law’s social justice mission.
RIIPL faculty, fellows, visiting scholars, and students do engaged research, learning, and
teaching on the legal and governance structures around information.
Center for Law, Information and Creativity
Northwestern University School of Law
Rutgers Institute for Information Policy and Law
Rutgers Law School
Though governments have been consumers of technology products for decades, new data-
driven technologies (e.g. data analytics, surveillance technologies, database management
systems) present new challenges and legal concerns that were not contemplated when
most relevant procurement laws or policies were developed. This guidance offers high-
level considerations and recommendations that can improve transparency, accountability,
oversight and public trust in government technology procurement without legislative
or regulatory reform (though modernization of procurement laws and policies is highly
encouraged). The guidance focuses on best practices government ocials can employ
prior to a technology being used or formally implemented, and it includes an appendix that
summarizes additional procurement resources and reports. This guidance can also be useful
to advocates seeking to understand and engage in government technology procurement.
Preferred Citation: Rashida Richardson, Best Practices for Government Procurement of Data-
Driven Technologies (2021).
This Guidance was created with support from the Annie E. Casey Foundation, Ford
Foundation, and Open Society Foundation.
Best Practices for Government Procurement
of Data-Driven Technologies
A Short Guidance for Key Stages of Government
Technology Procurement
3Best Practices for Government Procurement of Data-Driven Technologies
A Short Guidance for Key Stages of Government Technology Procurement
Best Practices and Considerations for Key Stages of the
Procurement Process
Dening the Problem or Government Needs & Soliciting the Solution
Identifying a technological solution to address a community or government need should be a deliberative process
but this part of procurement is often rushed so many key considerations are overlooked and some alternative
approaches are not pursued. This section highlights key considerations and recommendations for evaluating
technological needs and approaches to solicitation.
Document your pre-solicitation technology assessment
Those tasked with executing procurement are not always included in discussions or decisions regarding
technological needs. Yet, it is during this stage that many key questions that later become the source of concern
go unanswered. By asking and documenting the answers to the following recommended questions, procurement
ocials can be better informed when selecting or drafting solicitations. This documentation can also be a helpful
resource in procurement processes that include participatory or oversight components. Questions for relevant
agency or oce staff that should be addressed before selecting or drafting a solicitation:
Questions Why am I asking this?
What is the need or problem that
requires a technological approach
or solution?
This is a simple question that often goes unasked. If you are dealing with
an agency or oce that has been pitched by a technology vendor’s sales
or marketing team, they may seek to purchase a technology without fully
considering its purpose or value in advancing the organizational mission,
priorities, or policies.
What part of the agency or oce
mission, priorities, or policies
does this technology advance or
address?
The answer to this question can help you assess the relevance and urgency
of this procurement request.
Is the agency or oce seeking
an immediate or long-term
technological solution?
The answer to this question can help you determine whether to explore
experimental solicitations (e.g. a pilot or trial).
Does the agency or oce currently
use a technology or service that
may be duplicated if this request is
fullled?
The answer to this question can help you determine whether a request is
necessary. It can also help you determine whether there are other ways to
achieve a particular need.
What, if any, market research was
performed to identify this particular
need or technology request?
The answer to this question can inform: (1) decisions regarding the type
of solicitation to pursue, (2) the type of information to seek in a solicitation
proposal, or (3) additional research to perform before key decisions
4 Best Practices for Government Procurement of Data-Driven Technologies
A Short Guidance for Key Stages of Government Technology Procurement
Questions Why am I asking this?
Can the agency or oce specify
particular features, functions or
services needed?
The answer to this question can help you determine specic information
to request from vendors and aid the review of proposals (e.g. Terms of
Service), especially proposals that seek to include additional or bundled
products and services.
What are the funding sources for
this request?
The answer to this question can help you assess the optimal solicitation
approach and information to seek the solicitation process. If external
funding sources are used, be sure to review whether it includes specic
limitations or requirements that can impact the procurement process.
Is the agency or oce interested
in immediate or long-term
technological solutions?
The answer to this question will help you assess solicitation options,
particularly whether to pursue experimental approaches (e.g. a pilot or trial)
to ensure the best long-term solution is identied.
Does the agency or oce have
capacity and interest to explore
a pilot or trial use of technology
requested?
The answer to this question can help you determine whether to explore
pilots, trials, or even regulatory sandbox efforts.
Has the agency or oce assessed
potential risks associated with the
technology request?
Some technologies can pose risks internally or result in public backlash, so
it is helpful to know whether there has been any assessment of these risk
to inform whether to proceed with solicitation or to inform what information
should be requested in the solicitation (e.g. whether the technology has
been independently audited or validated).
Does the requesting agency or
oce intend to publish information
about the product or service?
The answer to this question can help you determine specic information
to request from vendors in the solicitation or during contract negotiations.
Vendors should be able to work with the requesting agency or oce
to create public-facing information or it can be mandated in contract
provisions.
Document your pre-solicitation technology assessment (Continued)
5Best Practices for Government Procurement of Data-Driven Technologies
A Short Guidance for Key Stages of Government Technology Procurement
Asses all solicitation approaches
There are different types of solicitations and the type of approach selected typically depends on the level of certainty
regarding what is needed. However, failing to select the optimal approach can unnecessarily limit information
obtained in proposals, constrain bid evaluations, erode negotiation advantages later on in the procurement
process, or lead to costly litigation. The following graphic compares different solicitation approaches and related
considerations:
Innovative or Short-Term
Procurement Methods
(varies by jurisdiction)* Request for Information Request for Proposal
Request for Quotation or
Invitation to Bid
Used when: Used when: Used when: Used when:
• Government wants to
test new initiative or
experimental approach
• Purchaser is not
committed to buying
a specic product or
service
• There is less certainty
regarding the feasibility,
appropriateness, risks
or validity of certain
technologies or services
• The need or problem
is not urgent and more
information is needed
• Purchaser is not
committed to buying
• Low or no resources to
commit
• Informing further
procurement efforts
• Government is exploring
a new initiative
• Purchaser lacks
sucient information
about government need
and/or market offerings
• Purchaser has generic
specication about
product or service
• Purchaser is not
committed to buying
• Informing further
procurement efforts
• Government has a
directive, need, or goal
but no clear specication
• Purchaser wants
competition but requires
more information
to determine how
government need will
be met or how a project
should proceed
• Purchaser is interested in
negotiating with vendors
and price is not the
primary consideration
• Purchaser is more
committed to buying
• Government knows
what it wants but has
budgetary constraints
• Purchaser is committed
to buying and cost is a
primary consideration
or there are costs
constraints
• Purchaser has the
information they need
about a product or
service and how they
want the contract
performed
• Purchaser is seeking a
product or service that
meets specic criteria
and requirements
• Purchasers wants to
screen vendors and
is not interested in
negotiating
*
Some jurisdictions authorize experimental procurement opportunities, where a government agency or oce can
perform a pilot or otherwise test a technological product or service for a short period of time or under specic
circumstances. These opportunities may be explicitly granted in the state or local procurement laws, or authorized
through separate laws and regulations (e.g. Arizona’s nancial technology regulatory sandbox).
6 Best Practices for Government Procurement of Data-Driven Technologies
A Short Guidance for Key Stages of Government Technology Procurement
Proposal Evaluation & Contract Negotiations
Data-driven technologies pose several challenges, risks, and opportunities that may require additional considerations
when reviewing solicitation proposals and when negotiating contracts with vendors. These technologies use and rely
on government data in different ways than traditional software, and they often require continued engagement with
the vendor. This section highlights key considerations when reviewing vendor proposals and for contract negotiations
to ensure vendor accountability. The recommended considerations are combined in this section because they should
be evaluated at each stage, and if information is missing in proposals, it can be raised or addressed during contract
negotiations.
Key Considerations and Best Practice for Proposal Evaluation and Contract Negotiations
How will data be collected, analyzed, managed, shared, secured, and who owns it?
If the product or
service relies on data
to perform expected
tasks:
• Does it require the requesting agency, oce, or multiple agencies to provide data? If
so, how and when?
• Is government data used to develop the system?
• Does it use third-party data? If so, do you know how the vendor obtained this data
and whether the vendor has validated its sources and datasets?
• Are there documentation requirements for the underlying datasets or models? If not,
who assesses the validity of the datasets and have you requested this information?
If the technology
captures and uses real-
time data via sensors,
cameras, or access to
government or third-
party information
systems:
• Is the data personally identiable or otherwise considered sensitive information?
If so, can it be aggregated, de-identied or anonymized? Who is responsible
for performing such tasks and will information regarding these practices be
communicated to the public and directly impacted individuals or communities?
• Is the data collection compliant with local laws (e.g. antidiscrimination laws or
consent requirements for the collection of sensitive data)?
• Is the data deleted? If so, how frequently and is any data (including metadata)
maintained or stored by the vendor?
• Does the vendor store or maintain the data? If so, how and what, if any, policies or
mechanism does the vendor have to ensure security of the data? Where is data
hosted?
• Who has access to the data? Does the vendor and requesting agency or oce have
policies or practices in place regarding access to data or the technology itself?
• Is the product or service capable of limiting the collection of unnecessary
information?
• Can the vendor draft a public facing document for the requesting agency or oce
describing how data is collected, used, shared, maintained, or deleted by the product
or service?
7Best Practices for Government Procurement of Data-Driven Technologies
A Short Guidance for Key Stages of Government Technology Procurement
How will data be collected, analyzed, managed, shared, secured, and who owns it?
If the product or
service enables or
enhances data sharing
within and/or outside of
government:
• Does the requesting agency or oce have data use, management and security
policies in place or under development?
• Did the vendor share information on existing policies or practices regarding data
use, management, and security? If not, have you requested this information?
If the proposal or
contract draft is silent
on data ownership:
• Who owns the data collected or otherwise used by the product or service? Is
ownership exclusive or can the data be licensed, copied, used, or shared during or
after the contract?
• Will the vendor use data related to this product or service for other commercial
purposes?
• Will the vendor or requesting agency or oce waive rights if data collected or used
by the product or service or relevant system outputs are requested via freedom of
information laws or legal proceedings?
• Is the vendor required to provide data, outputs or other information from its product
or service after the contract expires or is terminated?
Key Considerations and Best Practice for Proposal Evaluation and Contract
Negotiations (Continued)
Does the system work, who maintains it, and are there known risks?
• Has the product or service been audited, validated or otherwise assessed? If so, is the vendor willing to share
the results or allow the requesting agency or oce to publicly post this information? If not, consider including
audit rights provisions in the contract.
• Has the requesting agency or oce communicated with other customers of the vendor about their experience
using the product or service?
• Does the product or service require any form of maintenance or updates during the expected contract period?
If so, who is responsible for this and will it result in additional costs not covered by the contract? Can the
requesting agency or oce store earlier versions of software?
• Will the vendor provide or offer training to staff using the product or services?
• Does the product or service produce revenue? If so, does the contract include provisions on how revenue is
handled and will this information be publicly available?
• Who is responsible if the product or services fails to meet expectations or produces unexpected, negative
outcomes? Does the contract include an indemnity clause? Does the contract include disclaimers for warranty
of merchantability or tness for purpose?
8 Best Practices for Government Procurement of Data-Driven Technologies
A Short Guidance for Key Stages of Government Technology Procurement
Miscellaneous
• How will vendor payments be issued? Are payments outcome-dependent or otherwise constrained by contract
performance requirements?
• Does the contract have consent to assignment provisions if the vendor merges or is acquired by another
company during the contract period?
• Is the vendor offering products or services beyond the scope of the solicitation request? If so, has the
requesting agency or oce considered how these add-ons may benet or compromise their goals?
• If your jurisdiction requires specic reviews or assessments (e.g. algorithmic impact assessments, equity
impact assessments, or surveillance oversight) before the product or services is used or during the contract
period, who is responsible for compliance? Does the contract require the vendor to provide necessary
information for compliance with local laws, regulations, or policies?
• Is the product or service in compliance with federal, state, and local laws (e.g. disability discrimination laws)?
• If the product or service is location-based, will it be installed universally in your jurisdiction? If not, has the
requesting agency or oce explained why its use will be targeted? Is it possible that the cost of the product or
service can limit how it is installed or used?
• Does the vendor have an existing contract with another agency or oce in your jurisdiction? If so, are there
rules that require this contract to have similar provisions? If not, you should contact someone within your
jurisdiction, who is familiar with the contract, product, or service before nalizing the contract with the vendor.
Summary of Existing Resources
AI Now’s Algorithmic
Accountability Policy
Toolkit (2018)
This is a informational guide for advocates but the last section of this toolkit titled
“Government Contract Provisions/Requirements’’ includes model procurement
contract provisions and language for contract regarding automated decision system
or other technologies that involve data analysis or statistical modeling. Some of
the model contract provisions are annotated with explanations on the purpose of
the provision. This toolkit can be a useful resource for updating standard contract
language, drafting contracts for new technologies, and in negotiating with technology
vendors.
Results for America
What Works Toolkit
(2018)
This toolkit is focused on US state and local government ocials that lead
procurement of human service providers, but many of the recommendations
provided can be useful in the technology procurement context. For example, the
toolkit provides recommendations on drafting an outcomes-focused “Requests For
Proposals”, which can be instructive in the technology procurement context because
a product’s capabilities does not necessarily guarantee expected outcomes.
Key Considerations and Best Practice for Proposal Evaluation and Contract
Negotiations (Continued)
9Best Practices for Government Procurement of Data-Driven Technologies
A Short Guidance for Key Stages of Government Technology Procurement
Summary of Existing Resources (Continued)
AI Now’s Confronting
Black Boxes: A Shadow
Report of the New
York City Automated
Decision System Task
Force (2019)
This is a report about the New York City Automated Decision System Task Force
process and it includes a range of recommendations based on the experience
and emerging research. Section Two of this report includes recommendations
to government agencies considering procurement of development of automated
decision systems, and many of these recommendations are best practices or key
considerations for procurement.
DataEthic’s White
Paper on Data Ethics in
Public Procurement of
AI based Services and
Solutions (2020)
This white paper provides a risk informed due diligence practices procurement
ocials or oces can adopt for public procurement of articial intelligence based
technologies.
DotEveryone’s
Buying Better Tech in
Government (2020)
This report highlights several challenges and dynamics in government procurement
of emerging technologies. The report and its recommendations are specic to
the United Kingdom, but it’s main themes and takeaways can be useful in other
jurisdictions. For example, the report describes common missteps in evaluating
social impacts of technologies and provides recommendations on how governments
can better value and control data used to develop and implement technologies.
Prison Policy Initiative’s
Best Practices for
Prison and Jail Tablet
Procurement (2020)
This guidance highlights general considerations and best practices for the
procurement of technology in the criminal legal system. Though this guidance is
sector and technology specic, its recommendations offer useful insights regarding
technology vendor practices and some of the best practices can be extrapolated
and modied in other contexts (e.g. inviting subject-matter experts to assist bid
evaluations).
World Economic
Forum’s AI Procurement
in a Box: Workbook
(2020)
This workbook is intended for government ocials that engage in procurement of AI-
enabled technologies and it provides a number of resources and tools for rethinking
traditional procurement practices. It guides the reader through key questions and
considerations for identifying and selecting technological solutions, including a risk
matrix for assessing technical vulnerabilities. The workbook also includes detailed,
tactical advice and key considerations for every part of the procurement process. It
concludes with ve case studies that explore how the procurement guidelines were
applied to different procurement challenges.
World Economic
Forum’s AI Procurement
in a Box: AI Government
Procurement Guidelines
(2020)
This report provides procurement guidelines for governments seeking to acquire AI
solutions and services. It highlights key considerations to address before acquisition
or use, and it includes high-level recommendations for drafting requests for proposals
(RFP) and evaluating vendor responses.
