Legal Aspects of Public Procurement 3rd Edition by Michael Flynn, Kirk Buffington, Richard Pennington ISBN 9781000066920 1000066924

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