September 2024

Welcome to the NASPO Legal Beat

Welcome back to the "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.

Last Chance to Register for NASPO Law Institute

Registration closes October 3, 2024, at 11:59 pm ET.

November 5-7, 2024

Boston, MA

This event starts with a New Attorney Bootcamp offered on November 5. It is an opportunity to further your knowledge of legal issues involved in procurement and to foster a community of interest among those government attorneys representing NASPO’s membership.

As a NASPO member benefit, each state receives three fully funded registrations for two state attorneys and the CPO/Primary Member or three state attorneys.

New Pulse Podcast:

Don’t Touch My Stuff: Mastering State Procurement: Navigating Contracts, Cybersecurity, and Intellectual Property –  Learn the critical elements involved in securing robust cyber liability insurance to protect against financial losses from data breaches and cyber attacks, 

and discover the types of coverage you absolutely need. Our goal is to arm you with the knowledge to advance technology and secure public benefits through strategic and innovative procurement practices. So, tune in and get ready to elevate your state contracting game!

Featured NASPO Resource:

Understanding Responsiveness v Responsibility in Procurement – Check out this information-packed Fact Sheet from NASPO Research & Innovation on the difference between “responsiveness” and “responsibility” in the state procurement context. Use this to train new staff, train your procurement teams, or as a refresher for yourself! 

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

SCOTUS: A Term to Remember

To say this Supreme Court term has been consequential seems like an understatement. Several of the cases before the Court have potential ramifications for those practicing in government contracting at any level. We will briefly highlight a couple of those cases below. Stay tuned for more case law updates!

• Snyder v United States – In 2014, Mayor of Portage, Indiana, James Snyder, received $13,000 from a truck company that had recently received contracts totaling over $1 million for new trash trucks for the city. Snyder argues the payment was for consulting services, but federal prosecutors called it an illegal gratuity.

  The Court held that Federal law forbids bribes to state and local officials but does not make it a crime for those officials to accept gratuities for their past acts. The majority writes that state and local governments already regulate gifts to officials, and so federal law “…does not supplement those state and local rules by subjecting 19 million state and local officials up to 10 years in prison for accepting even commonplace gratuities.”

This case raises concerns about federal intrusion into state interests and also may have weakened anti-corruption laws. Congress may act to clarify the law in question.

• Loper Bright Enterprises v Raimondo – Fishing industry plaintiffs challenged a 2018 National Marine Fisheries Service rule requiring fishers to pay part of the cost of having federal compliance monitors on their ships by claiming that regulation exceeded the agency’s authority. 

In 1984 the Supreme Court established what we refer to now as “Chevron deference” – a foundational doctrine that states courts should defer to a reasonable agency interpretation of acts of Congress and put forth a two-step analysis to determine whether Congress spoke directly to the precise question at issue. If not, the court must defer to the reasonable agency interpretation. Loper Bright overrules Chevron, holding that courts may not defer to an agency’s interpretation of the law simply because a statute is ambiguous.

Interestingly, the Court states specifically that this decision does not call into question its prior cases that relied on Chevron, which remain binding precedent. Those decisions are, according to the Court, “still subject to statutory stare decisis despite our change in interpretive methodology.”

For more on the Loper Bright decision, check out GW Law’s recent webinar on the impact this decision may have on government procurement law.

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