State and Local Procurement
State and local governments spend billions of dollars each year purchasing commodities and contractual services. This purchasing activity is increasing under current trends toward privatization and outsourcing, the appeal of commercial activities as sources of revenue, and the transfer of federal responsibilities to state and local governments. The laws, rules and policies applicable to state and local procurements are diverse and complex and, in some cases, also include an overlay of federally-imposed rules and requirements.
Doing business successfully in this vibrant but challenging sector of the economy requires a thorough knowledge of the applicable laws and policies as well as an appreciation of the political and business needs of each party to the transaction.
Holland & Knight’s State and Local Government Procurement Team includes lawyers who represent clients who sell products or services to state or local governments as well as lawyers who assist certain governmental entities in procurement policy and implementation, contract negotiation, protests and claims. Our clients are diverse in both size and products or services offered. We help them navigate virtually every form of state and local procurement used in the United States.
Our state and local government procurement lawyers are spread geographically throughout the firm. Many of them have served in government during their careers providing an insider’s perspective for the unwritten sensitivities and policies of governments. Lawyers on our team have particular experience in state and local procurement laws and regulations in the District of Columbia, Florida, Illinois, Georgia, Massachusetts, Maryland, New York and Virginia. In addition, we have experience representing clients in state and local government procurement matters in Alabama, California, Colorado, Guam, Hawaii, Louisiana, North Carolina, Oregon, Pennsylvania, Puerto Rico, Rhode Island, Texas and Washington, and in numerous localities.
Our broad geographical reach and breadth of our experience are a few of the greatest strengths of our team. We regularly represent businesses that contract with state and local governments for the following types of products and services:
- information technology
- telecommunications
- construction and development
- concession agreements
- custom and commercial products
- environmental remediation
- food services
- transportation products and services
- health care products and services
- education products and services
- homeland security
- financial services
- professional services
- real estate
We also remain at the forefront of new developments in the field. For example, some of our attorneys were involved with the development of the Model Procurement Code and Regulations, adopted in some form by many state governments. Others are active in industry groups or bar associations and work on committees concerned with government procurement policies. Our attorneys regularly speak and write on procurement and contracting topics.
Our State and Local Government Procurement Team is supported by the vast resources of Holland & Knight, one of the nation’s largest law firms with over 100+ practice areas. Drawing from the firm’s commercial sector capabilities, we are able to deliver comprehensive services in the following areas:
- contracting
- subcontracting
- corporate transactions and acquisitions
- criminal defense and investigations
- employment
- environmental matters
- export controls and international law
- financing
- information technology
- intellectual property
- litigation
- real estate
- appropriations
- governmental affairs
All of our lawyers are committed to providing a seamless, integrated approach to winning new business and maintaining existing contracts for our clients. Our goal is to help you stay ahead of the ever-changing procurement and related political landscapes in the state and local jurisdictions where you do business or want to do business.
Understanding and Responding to Solicitations
Many companies wait to consult state and local procurement counsel until after the bids or proposals have been opened and the procuring agency has posted its intended decision. In many cases, this approach prevents a company from taking full advantage of pre-bid or pre-proposal opportunities to maximize its chances for success. This approach can also place a company at a serious disadvantage, particularly in jurisdictions where failure to take appropriate action within very short timeframes can result in waiver of the right to challenge a specification or a decision of the procuring agency.
Getting early advice in the procurement process can help improve a company’s competitive edge. Just having a better understanding of the complexities, particular nuances, unwritten sensitivities or the preferences of decision-makers for a specific state or local jurisdiction can be highly useful. In some cases, early advice might result in convincing a procuring agency that a competitive procurement is not legally required, such as in situations where a product or service is a sole source or where an existing contract can be renewed or extended. We regularly provide insights such as these for our clients where competitive procurement is required, we help clients anticipate and avoid problems in their responses to a solicitation and help ensure that possible protest issues are not waived. In the pre-solicitation phase, our state and local government procurement lawyers also assist clients in becoming pre-qualified to bid on a project, if necessary, and in obtaining Minority/Women Business Enterprise certification.
Prior to the issuance of a competitive solicitation, we assist clients by reviewing and commenting on draft specifications published by an agency, working with an agency to revise draft specifications where bidders are provided such an opportunity, attending agency meetings relating to the upcoming procurement, and working with the client to develop a general strategy for responding to an anticipated solicitation. We provide advice on myriad contract vehicles including: firm-fixed price contracts, cost-reimbursement contracts, multiple award schedules, indefinite delivery indefinite quantity (IDIQ) contracts, design, construction and design, build, operate and maintain agreements, cooperative purchasing arrangements and revenue-generating contracts. Our lawyers have experience with every procurement methodology, including sole-source, invitations for bids(IFB; low bid), requests for proposals, best value and negotiated procurement.
Some state and local jurisdictions provide an opportunity for bidders to challenge procurement specifications if they create an unfair competitive advantage for one bidder or if they prevent a potential bidder from participating in the competitive procurement. Our lawyers regularly review solicitation specifications to determine and advise whether a protest of the specifications is warranted. We also regularly assist clients after a solicitation is issued by attending bidder conferences, drafting questions regarding the solicitation, and reviewing the client’s bid or response package to ensure that it is complete and responsive to the solicitation.
Bid Protests
We file and defend bid protests in state and local forums. Our team understands the time and expense of bid protests, as well as the potential political and public relations ramifications, and recommend filing or continuing protests only when they have merit. Bid protests demand the dedication of knowledgeable lawyers and support personnel, particularly in jurisdictions that impose severe time restraints on litigants. We have the experience and large firm resources to effectively and efficiently litigate such bid protest cases.
Contract Counseling
Early advice can protect your position in connection with later disputes, audits and investigations. We assist clients in negotiating contracts with state and local governments and are familiar in many jurisdictions with those terms and conditions that, although not mandatory, are considered by a state or local government to be “non-negotiable.” We analyze the legality of particular contract provisions and the risks relating to state or local government specific laws and regulations.
Contract Compliance and Performance
The work of the firm’s state and local government procurement lawyers does not end with the execution of a contract awarded to a client. Rather, we are regularly called upon to assist clients in contract compliance and performance matters. Holland & Knight has developed corporate ethics and compliance programs and conducts training sessions for our government procurement clients. Our lawyers handle a large variety of contract disputes between clients and state and local governments with which they contract in many jurisdictions throughout the United States. We also represent clients in disputes between contractors on state and local government projects.
Business Development
Having a public policy strategy for increasing business with state and local governments is imperative if your company is looking to be competitive. Holland & Knight offers clients significant public policy resources at the state and local levels.
The firm’s lawyers and governmental consultants are available to work closely with you to develop a unique and personalized tactical and strategic plan to developing or maintaining business with state and local governments. Having a well thought out plan helps you gain an advantage over competitors in that you go to market prepared, organized and focused.