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E-raamat: Legal Aspects of Public Procurement 3rd edition [Taylor & Francis e-raamat]

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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.

Preface xi
Acknowledgments xv
1 The Essential Principles and Structure of the United States Legal System
1(26)
The Foundation: Sources and Types of Law
2(4)
History of Statutory Law Affecting Public Procurement
6(1)
Statutory Law Affecting Market Competition
7(9)
Statutory Law Governing Public Records
16(1)
Statutory Law Governing Intellectual Property Rights
17(4)
An Overview of the United States Judicial Structure
21(1)
Legal Research
22(2)
Conclusion
24(3)
2 The Fundamentals of Procurement Law and Procurement Authority
27(24)
Public Contracting
28(1)
Other Law Applicable to Public Procurement
29(1)
The Government's Authority to Contract
30(2)
The Law of Agency
32(1)
Types of Authority
33(1)
Liability of a Principal
34(1)
The Impact of State Statutory Laws
35(1)
Public Works and Architect-Engineer Selection
35(2)
Key Components of the ABA Model Procurement Code
37(4)
Cooperative Procurement
41(1)
Other Impacts of Statutory and Administrative Laws
42(5)
Reform of Public Procurement Laws, Administrative Law, and Enabling Legislation
47(1)
Conclusion
48(3)
3 The Basic Components of a Common Law Contract
51(20)
What Is a Contract?
51(1)
When Does a Contract Exist?
52(3)
Elements of a Contract
55(4)
Assignment and Novation
59(1)
Conditions That May Lead to a Voidable Contract
60(3)
Rules for Interpreting Contracts
63(2)
Parameters for Written Contracts
65(1)
Differentiating Between Private and Public Contracts
66(2)
Common Law Breaches and Remedies
68(2)
Conclusion
70(1)
4 The Uniform Commercial Code
71(28)
Scope of Article 2 of the U.C.C
72(1)
The U.C.C. Contract and Its Formation
73(6)
The U.C.C. and Warranties
79(4)
Performance of an Article 2 U.C.C. Contract
83(7)
Remedies for Breach of an Article 2 Contract
90(4)
Special Remedies for Buyer and Seller Breach of Contract
94(3)
Conclusion
97(2)
5 The Legal Context for Formal Solicitations
99(28)
An Overview of the Formal Solicitation Process
99(2)
Drafting the Contract
101(2)
Organization of a Basic Contract
103(4)
Drafting Terms and Conditions
107(5)
Formalities in Invitations for Bids
112(7)
Contractor Responsibility
119(1)
Protests Against Solicitation or Award
120(3)
Suspension and Debarment
123(2)
Conclusion
125(2)
6 Legal Issues in Competitive Sealed Proposals
127(26)
An Overview of Differences Between RFP and IFB Processes
128(1)
Pre-Solicitation Planning Issues
129(5)
Cost and Price Analysis
134(4)
The Proposal and the Contract
138(2)
Responsiveness of Proposals
140(2)
Competitive Range, Discussions, and Proposal Revisions
142(4)
Evaluation
146(2)
Debriefing
148(2)
Post-Award Formalization of Contracts
150(1)
Conclusion
151(2)
7 The Legal Context of Contract Administration
153(24)
The Order of Precedence Clause
154(1)
Dealing With Changes During Contract Performance
154(5)
Cost or Price Analysis in Contract Modifications
159(1)
Matters of Time
160(3)
Matters of Scope
163(3)
Inspection, Acceptance, and Warranties
166(1)
Third-Party Beneficiaries and Subcontractors
167(1)
Contract Terminations
168(2)
Waiver of Contract Requirements
170(1)
Liability Allocation Provisions
171(3)
Contract Controversies
174(1)
Conclusion
175(2)
8 Legal Considerations in Information Technology Procurement
177(22)
Key Issues When Purchasing Software
177(5)
Procurement of Information Technology in the "Cloud"
182(5)
Other Legal Issues in IT Professional Services Contracts
187(3)
Modular Procurement and Agile Project Delivery
190(5)
Conclusion
195(4)
9 Ethics and Professionalism in Public Procurement
199(22)
Ethics and Professionalism
199(1)
Laws Versus the Codes of Ethics
200(2)
Procurement as a Profession
202(3)
Ethics in Public Procurement
205(9)
Nuances of Ethical Integrity
214(2)
Attorney Ethics and Professionalism
216(2)
Conclusion
218(3)
10 Relevant Procurement Case Law
221(30)
Cases Involving Acceptance and Rejection of Goods
221(4)
Cases About Contract Formation and Award
225(10)
Cases About Contract Administration
235(5)
Applying the U.C.C. to Hypothetical Controversies
240(11)
Appendix A NIGP Code of Ethics 251(2)
Appendix B UPPCC Code of Ethics 253(2)
Appendix C Organizational Conflicts of Interest--Consultants 255(2)
Index 257
Michael Flynn, Esq., is a professor of law at the Nova Southeastern University Shepard Broad Law Center in Fort Lauderdale, FL. Professor Flynn received his undergraduate, magna cum laude, and his law degree, cum laude, from Gonzaga University in Washington. He was a trial lawyer and litigator in private practice and the Assistant Attorney General in the Washington State Attorney Generals Office. He served as the Chief of the Consumer Protection and Antitrust Division of the Washington State Attorney Generals Office in Eastern Washington. He has taught at the University of Washington, the University of Miami, and Stanford University; has authored over 35 articles; and has conducted or presented at seminars and conferences for various professional groups.

Kirk W. Buffington, CPPO, C.P.M., is the Director, Procurement Services for the City of Fort Lauderdale, Florida. Prior to public service, he was employed in the private sector. He holds a bachelors degree from Florida State University and earned his masters of business administration degree from Webster University. A strong supporter of the profession, he has served numerous positions of leadership in procurement associations on the local and national level. He sits on the NIGP Board of Directors. By invitation, he presented a paper at the first International Symposium on Supply and Public Procurement in Budapest, Hungary in 2003. He is a well-known speaker on government eProcurement topics.

Richard Pennington, CPPO, was General Counsel to NASPO ValuePoint from 2013 until 2018. He is a retired Air Force colonel who specialized in government contract law as a judge advocate. With the State of Colorado, he served as an assistant attorney general, state purchasing director, and director of the Division of Finance and Procurement. He was also of counsel in the Denver government contracts practice of McKenna, Long & Aldridge LLP. He received his Air Force commission from the U.S. Air Force Academy, a J.D. from the University of Denver, and an LL.M. (Government Procurement Law) from The George Washington University. His articles appear in NIGPs Government Procurement and NCMAs Contract Management magazines. He is the author of Seeing Excellence: Learning from Great Procurement Teams.