Infotech and the Law

By Richard RectorWith state and local procurement budgets increasing substantially in the future, many contractors soon will compete in new and unfamiliar markets, and under rules that differ from state to state and locality to locality. In this uncertain procurement environment, how can a contractor maximize its competitive position without running afoul of local statutes, regulations and ordinances? Learning the specific rules of a locality is the best practice; knowing those procedures can prevent missteps as well as provide a competitive edge. For example, local rules on the proper timing and substance of discussions with procurement officials can be critical, because an impropriety in this area, depending upon its severity, could jeopardize an offer or result in disqualification.Conversely, knowing local rules on discussions can provide an advantage if your competitors are not similarly informed. For instance, if there is no restriction on exploring alternative solutions with an agency during discussions, an informed company can use the process to identify changes to its proposal that will improve its position. If competitors believe discussions are limited solely to clarifying the existing proposal, as is the case in many localities, the informed company will have an edge.Knowing local rules also is important in protecting your rights in a procurement. Under Maryland law, for example, an offerer is required to protest an award within seven days of when it knew or should have known of the basis for protest. The state, however, is not required to provide written notice of an award decision when using competitive sealed proposals; rather, the state is simply required to publish the award notice within 30 days of the contract's approval. Therefore, companies must be diligent particularly in Maryland, as the time to protest can expire well before notice of award is published. Unfortunately, learning local procurement rules is much easier said than done. While it is appropriate in large and significant procurements, there may be situations in which the time and expense associated with such learning is not warranted.In these circumstances, I have recommended that clients use the American Bar Association's "Principles of Competition in Public Procurement" as a model. The principles, developed and adopted in 1998, establish guidelines that the bar association recommends be followed in all public procurements.These principles are not binding, and they do not take precedence over the laws of a state or local government. Nonetheless, they are a reliable benchmark against which to monitor the developments in any procurement. The 10 principles state that the public entity should:? Use fair and open competition to the maximum extent practicable.? Conduct an acquisition without competition only when authorized by law.? Restrict competition only when necessary to satisfy a reasonable public requirement.? Provide clear, adequate and sufficiently definite information about public needs to allow offerers to enter the public acquisition on an equal basis.? Use reasonable methods to publicize requirements and provide timely solicitation documents, including amendments, clarifications and changes in requirements.? State in solicitations the bases to be used for evaluating bids and proposals and for making awards.? Evaluate bids and proposals and make an award solely on the criteria in the solicitation and applicable law.? Ensure offerers receive impartial, fair and equivalent treatment in a procurement.? Grant maximum public access to procurement information consistent with protection of trade secrets, source selection information and personal privacy rights.? Ensure all parties involved in the acquisition process act fairly, honestly and in good faith.Deviation from one of these principles in a state or local procurement does not necessarily mean a procurement law has been violated. However, such a deviation should be viewed as a red flag that requires further investigation and analysis.Richard Rector is a partner in the Government Contracts Group of Piper & Marbury LLP in Washington. His e-mail address is rrector@pipermar.com.