1 / 16

Using Prevent Defense: Mitigating Legal Risk in Procurements

Using Prevent Defense: Mitigating Legal Risk in Procurements . Presented by Richard Pennington John Westrick. Roles of Attorneys.

sef
Download Presentation

Using Prevent Defense: Mitigating Legal Risk in Procurements

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Using Prevent Defense:Mitigating Legal Risk in Procurements Presented by Richard Pennington John Westrick

  2. Roles of Attorneys “. . . Procurement professionals must not abdicate their discretion and authority to the legal officer. The role of the legal officer is to advise and counsel; it is not to take over the procurement operation . . . Attorneys tend to research issues without worrying about deadlines, split very fine legal hairs . . . and propose courses of action that frequently are impractical . . .” -- McCue and Pitzer, Fundamentals of Leadership and Management in Public Procurement, p. 101 (NIGP 2005)

  3. Objectives Familiarity with vendor perspectives on risk Know key areas of legal riskin a procurement Know basic approaches andresources for mitigating risk Understand impact of judicial process on you

  4. Vendor’s First Thoughts . . . • Some companies will not propose without some informal market communication • Industry sees executive level client contact as a key business strategy: clarify rules governing blackout periods • Concerns about exceptions to terms and conditions, IP rights, confidentiality

  5. Confidential Information

  6. The Commonwealth’s Approach • Va. Code § 2.2-4342.F: Vendor must invoke protection before submittal, identify the info, and state reason why protection needed • Problems: Vendor mistake; Vendor over-reaching • Getting caught between duty to protect and duty to disclose • Effect of standard RFP instruction

  7. Vendor Risks in Contracting

  8. Common Approach to Limitation of Liability by Vendors Neither party shall be liable for indirect, special, consequential, or incidental damages. Vendor’s liability for claims or damages arising under or relating to performance of this contract shall be limited to the amount paid by the Commonwealth to the vendor under the contract.

  9. Vendors are . . . • Using proposal assumptions on level of effort as a way of setting baselines, e.g. number of reports • Focusing on price even in best value RFPs • Sometimes basing proposal strategy on negotiation models, e.g. use of reservation prices (Consider use of BAFOs . . .)

  10. Protests and Debriefings

  11. Bid Protests and Appeals

  12. Low estimates of numbers of tailored reports & scope of end-user “discovery” meetings in IT contracts Governance boards that delay decisions Contractor accommodation of client requests sets early expectations/blurs scope boundaries Not adequately defining performance requirements, e.g. “desirable” features: “we can” versus “we shall” Risk to Vendors from . . .

  13. Rules of Evidence and You

  14. Attorneys and Clients • Typically the attorney is an advisor, not the decider • Attorney-client privilege is personal to the relationship: use caution with third party communications • Should you invite your attorney to a negotiation?

  15. Remember • Use attorneys to identify and help mitigate risks • Keep your procurement files professional and consistent • Monitor the “story” told by your procurement file • Discuss with your attorney when confidentiality rules become important 15 15

  16. John Westrick Senior Assistant Attorney General jwestrick@oag.state.va.us Richard Pennington NIGP Instructor Richard@SCOPEVision.net

More Related