Legal Aspects of Public Procurement (Cornerstones of Public Procurement)

Legal Aspects of Public Procurement, Third Edition provides a glimpse into the relationships between the legal, ethical, and professional standards of public procurement, outlining not only the interconnections of federal, state, and local law but also best practice under comprehensive judicial standards. The book addresses the ever-changing legal structures that work in conjunction and define the public procurement profession, providing recommended guidance for how practitioners can engage in the function while staying ethically aligned. Instead of trying to address every issue at the heart of public procurement, however, the book seeks to establish the history and spirit of the law, outlining how practitioners can engage proactively and willingly to not only perform their function, but to also become advocates for procurement law modernization. This third edition features new chapters on competitive sealed proposals and contract administration, as well as a thoroughly revised and updated chapter on procurement of information technology to better relate to an increasingly digital world. Promoting a start-to-finish guidance of the procurement process, Legal Aspects of Public Procurement explores the relationships between solicitation, proposals, contract administration, and the cutting-edge aspects of technology procurements, providing a theoretical and case-study driven foundation for novice and veteran practitioners alike. Cover Half Title Series Title Copyright Contents Preface Acknowledgments 1 The Essential Principles and Structure of the United States Legal System The Foundation: Sources and Types of Law History of Statutory Law Affecting Public Procurement Statutory Law Affecting Market Competition Statutory Law Governing Public Records Statutory Law Governing Intellectual Property Rights An Overview of the United States Judicial Structure Legal Research Conclusion 2 The Fundamentals of Procurement Law and Procurement Authority Public Contracting Other Law Applicable to Public Procurement The Government’s Authority to Contract The Law of Agency Types of Authority Liability of a Principal The Impact of State Statutory Laws Public Works and Architect-Engineer Selection Key Components of the ABA Model Procurement Code Cooperative Procurement Other Impacts of Statutory and Administrative Laws Reform of Public Procurement Laws, Administrative Law, and Enabling Legislation Conclusion 3 The Basic Components of a Common Law Contract What Is a Contract? When Does a Contract Exist? Elements of a Contract Assignment and Novation Conditions That May Lead to a Voidable Contract Rules for Interpreting Contracts Parameters for Written Contracts Differentiating Between Private and Public Contracts Common Law Breaches and Remedies Conclusion 4 The Uniform Commercial Code Scope of Article 2 of the U.C.C. The U.C.C. Contract and Its Formation The U.C.C. and Warranties Performance of an Article 2 U.C.C. Contract Remedies for Breach of an Article 2 Contract Special Remedies for Buyer and Seller Breach of Contract Conclusion 5 The Legal Context for Formal Solicitations An Overview of the Formal Solicitation Process Drafting the Contract Organization of a Basic Contract Drafting Terms and Conditions Formalities in Invitations for Bids Contractor Responsibility Protests Against Solicitation or Award Suspension and Debarment Conclusion 6 Legal Issues in Competitive Sealed Proposals An Overview of Differences Between RFP and IFB Processes Pre-Solicitation Planning Issues Cost and Price Analysis The Proposal and the Contract Responsiveness of Proposals Competitive Range, Discussions, and Proposal Revisions Evaluation Debriefing Post-Award Formalization of Contracts Conclusion 7 The Legal Context of Contract Administration The Order of Precedence Clause Dealing With Changes During Contract Performance Cost or Price Analysis in Contract Modifications Matters of Time Matters of Scope Inspection, Acceptance, and Warranties Third-Party Beneficiaries and Subcontractors Contract Terminations Waiver of Contract Requirements Liability Allocation Provisions Contract Controversies Conclusion 8 Legal Considerations in Information Technology Procurement Key Issues When Purchasing Software Procurement of Information Technology in the “Cloud” Other Legal Issues in IT Professional Services Contracts Modular Procurement and Agile Project Delivery Conclusion 9 Ethics and Professionalism in Public Procurement Ethics and Professionalism Laws Versus the Codes of Ethics Procurement as a Profession Ethics in Public Procurement Nuances of Ethical Integrity Attorney Ethics and Professionalism Conclusion 10 Relevant Procurement Case Law Cases Involving Acceptance and Rejection of Goods Cases About Contract Formation and Award Cases About Contract Administration Applying the U.C.C. to Hypothetical Controversies Appendix A: NIGP Code of Ethics Appendix B: UPPCC Code of Ethics Appendix C: Organizational Conflicts of Interest—Consultants Index "According to the United States Census Bureau, American state and local governments spend roughly $3.5 trillion dollars annually fulfilling the community and governmental needs of the public procurement function. Designed to provide a strategic overview of the policy, legislation, and program oversight of public procurement, Legal Aspects of Public Procurement, Third Edition provides a glimpse into the relationships between the legal, ethical, and professional standards of public procurement, outlining not only the interconnections of federal, state, and local law but also best practice under comprehensive judicial standards. The book addresses the ever-changing legal structures that work in conjunction and define the public procurement profession, providing recommended guidance for how practitioners can engage in the function while staying ethically aligned. Instead of trying to address every issue at the heart of public procurement, however, the book seeks to establish the history and spirit of the law, outlining how practitioners can engage proactively and willingly to not only perform their function but to also become advocates for procurement law modernization. While the basic structure of this third edition remains the same, new chapters have been added to cover the legal aspects of competitive sealed proposals and contract administration. In addition, a chapter on procurement of information technology has been revised and updated to better relate to an increasingly digital world. Promoting a start-to-finish guidance of the procurement process, Legal Aspects of Public Procurement explores the relationships between solicitation, proposals, contract administration, and the cutting-edge aspects of technology procurements, providing a theoretical and case-study driven foundation for novice and veteran practitioners alike"-- Provided by publisher __Legal Aspects of Public Procurement, Third Edition__ provides a glimpse into the relationships between the legal, ethical, and professional standards of public procurement, outlining not only the interconnections of federal, state, and local law but also best practice under comprehensive judicial standards. The book addresses the ever-changing legal structures that work in conjunction and define the public procurement profession, providing recommended guidance for how practitioners can engage in the function while staying ethically aligned. Instead of trying to address every issue at the heart of public procurement, however, the book seeks to establish the history and spirit of the law, outlining how practitioners can engage proactively and willingly to not only perform their function, but to also become advocates for procurement law modernization.