May 2024

Welcome to the NASPO Legal Beat

Introducing "Legal Beat", your quarterly go-to resource curated by Megan Smyth, attorney and the Director of Legal Education at NASPO. The Legal Beat aims to deliver valuable insights, resources, and crucial reminders tailored specifically for the procurement sector. Whether you're a seasoned legal professional or just stepping into the procurement realm,  the Legal Beat promises to keep you informed and ahead of the curve. We're thrilled to embark on this journey with you and to contribute to the enrichment of our legal community. 

If you have questions, comments, or ideas for features in the future, please reach out to Megan Smyth.

Latest Announcements from NASPO Legal Education

The 11th Annual NASPO Law Institute will be held in Boston, Massachusetts on November 5-7, 2024. Mark your calendars and save the date!

The 4th Edition of NASPO’s State and Local Government Procurement: A Practical Guide is now available! Copies of the practical guide can be purchased as a digital eBook through your favorite eBook provider: Amazon, Apple, Kobo and Redshelf!

Missed our webinar on AI & Legal Implications in Public Procurement? No worries! The recording is now on YouTube and Procurement U's LMS. Earn a contact hour by passing the assessment after viewing. Don't miss out on crucial insights from our guest speaker, Robert Metzger, JD.!

Curated news items, information, guides, and other curiosities for the legally minded.

Artificial Intelligence: What's New?

• The California GenAI Guidelines for Public Procurement have been released! The guidelines outline best practices for the procurement, use, and training associated with implementing Generative Artificial Intelligence (GenAI)

 in California state government. The objective is to ensure the safe and effective utilization of this technology to enhance services for all residents of California. Read more here: State of California GenAI Guide.

• Utah has also recently been busy legislating on AI and we have Utah – SB 149 (effective as of May 1, 2024) – Regulates generative AI, defined as, “An artificial system; that is trained on data; interacts with a person using text, audio, or visual communication; generates non-scripted outputs similar to outputs created by a human; with limited or no human oversight. Major provisions of the law include: consumer protection; disclosure requirements on the use of GenAI; creation of the Office of Artificial Intelligence Policy (OAIP) tasked with rulemaking and oversight; addition to the Utah Criminal Code  stating an actor may be found guilt of an offense if they committed it with the help of GenAI or intentionally prompted AI to commit an offense. 

• Many states are proposing “algorithmic discrimination laws” to expand the scope of state antidiscrimination laws to include discrimination resulting from use or reliance on AI or automated decision tools; and disallow reliance on AI as a defense to antidiscrimination claims. See Georgia H.B.

890 (introduced January 9, 2024); Hawaii H.B. 1607 (introduced January 17, 2024); and Washington H.B. 1951 (introduced January 8, 2024). 

• "Synthetic Media" is generally defined as audio or video content substantially produced by generative AI. Some states have proposed specific bans on this type of content in political advertising or adult content. Legislators in many states are proposing broader disclosure agreements for synthetic media, including: California S.B. 970, Florida H.B. 1459; Mass. H.D. 4788; New York S.B. 7847; New York S.B. 7922; Ohio S.B. 217; Tennessee S.B. 2431; Virginia H.B. 697; and Wyoming S.F. 51.

• For more insight into how state Chief Information Security Officers (CISOs) are looking at generative AI, check out this podcast from State Scoop where four CISOs share their strategies for managing rapidly changing technology.

• Our friends at NASCIO (National Association of State Chief Information Officers) have released some guidance on AI – “Your AI Blueprint: 12 Key Considerations as States Develop Their Artificial Intelligence Roadmaps.” Creating a roadmap before diving in can facilitate “the seamless adoption of AI but also enhances efficiency for an already strained state workforce.” Check in with your state’s CIO or CISO on what your state is doing to create enterprise-wide guidance around use of AI.  

• NASCIO has also released a new publication titled, "Generative Artificial Intelligence and its Impact on State Government IT Workforces." Read it here.

TikTok Bans

• Many states have recently enacted state bans on the use of Chinese technology products on government devices. Mostly the bans have focused on TikTok, but experts in 

cybersecurity say there are many other foreign-based companies providing technology that should be considered alongside TikTok’s owner ByteDance. Most of the actions taking place in this area are executive orders or directives from state agency directors or secretaries. Directives include: bans on the use of TikTok, WeChat, Telegram, and other ByteDance products; no executive agency or employee can download TikTok or visit TikTok’s website on any state-issued device. Are these bans leading to new language in state contracts? What considerations should attorneys carry into contract negotiations? If your state is dealing with this issue on the legal side, please reach out to Megan Smyth to discuss and share with your colleagues.

NASPO Resources

The Repository of State Practices (RoSP) is a database of state procurement statutes, regulations, and policies continually updated by the NASPO Research & Innovation Team. Check it out here! 

NASPO’s State Preference Repository provides a list of state bidding preferences, describing requirements for each preference type. A quick glossary on the preferences included in our Resposity: 

• In State/Local Preference – an advantage given to bidders/proposers in response to a solicitation for products or services, granted based on pre-established criteria that can include suppliers’ geographic location, residency requirements, or origination of the product or service.
• Reciprocal Preference – an advantage a state applies in order to match a preference given by another state. A reciprocal preference, or simply reciprocity, defines a bidding situation in which a state gives a preference to its resident bidder against the bid of a non-resident bidder, equal to the preference given by the other state to its own resident bidders.  
• Tie Bid Preference – legally permit a state to preferentially select a in-state or local bidder for a contract if the bid matches that of an out-of-state source. 
• Vendor-Based Price Preferences or Set-Asides – include preferences for veteran, minority, and women-owned businesses, small businesses, disabled-owned businesses, etc. 

Call for Volunteers!

The ABA is partnering with NASPO to update the Model Procurement Code, last revised over 20 years ago. If you are interested in being on an Article Committee, please reach out to Lydia Ruiz or Megan Smyth, for more information and to be placed on a list to be notified when revision work will begin.

Model Procurement Code Article Committees You Can Join

1. General Drafting Committee: Article 1 – General Provisions; Article 2 – Procurement Organization; Article 7 – Cost Principles; Article 8 – Supply Management;  

2. Article 3 Committee: Source Selection and Contract Formation 

3. Articles 4 and 6 Committee: Specifications; Modifications and Termination of Contracts for Supplies and Services; 

4. Article 5 Committee: Procurement of Infrastructure Facilities and Services; 

5. Article 9 Committee: Legal and Contractual Remedies; 

6. Article 10 Committee: Intergovernmental Relations; 

7. Article 11 Committee: Assistance to Small and Disadvantaged Businesses; Federal Assistance or Contract Procurement Requirements; 

8. Article 12 Committee: Ethics in Public Contracting