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Inspiration from a U.S. lawyer serving government procurement dispute

来源: 中国政府采购报打印09:11, November 11, 2019 Source: China Government Procurement News [ Print ]

■ Jiao Hongbao

The purchase of lawyers' legal services is common in government procurement projects. The government uses financial funds to determine professional service providers through the government procurement process to meet the legal service needs of the government in the process of administrative management or to meet the needs of legal services for the public. In the international community, it is a common practice for the government to purchase legal services. In addition to a large number of lawyers who are active as government employees in various government departments, external law firms also often provide legal services to the government, including for the government. Provide professional legal services such as legislation, administrative affairs management, dispute resolution, etc., and provide public legal services such as legal aid to eligible public under the support of government funds.

In foreign countries, there are not a few disputes about government procurement lawyers 'legal services. The U.S. Department of Housing and Urban Development has disputed with a law firm due to the procurement of lawyers' legal services. US Federal Claims Court.

US Government Procurement Legal Services Contracts

1965 年成立,负责促进美国的住房及都市发展。 The US Department of Housing and Urban Development is a federal government agency established in 1965 to promote housing and urban development in the United States. Its main job is to provide loan guarantees to help low- and middle-income people improve their housing conditions and engage in urban renewal plans. When a U.S. private home buyer purchases a family's only home, they will receive a mortgage loan, and the loan still has the risk of being unable to be recovered. At this time, after the Federal Housing Administration has reviewed it, the U.S. Department of Housing and Urban Development will provide repayment guarantees for the family's only home loan. Helping private buyers get loans. When these loans approved by the Federal Housing Administration default, the lenders foreclose their homes, which means they take back the mortgaged home and transfer it to the Ministry of Housing and Urban Development. Through this mechanism, the Ministry of Housing and Urban Development gains ownership of thousands of homes each year. The Ministry of Housing and Urban Development hires a professional law firm as a service provider to manage and sell the homes it owns. This dispute occurred in the case of the Department of Housing and Urban Development's procurement of legal services. The law firm that provided the legal services provided management and marketing services for the Department of Housing and Urban Development's housing in Ohio and Michigan.

2003 8 月的一次招标中,住房和城市发展部就其所管理的遍布美国 24 个地理区域的住房寻找管理和营销服务供应商。 In a tender in August 2003 , the Department of Housing and Urban Development sought management and marketing service providers for the homes it manages across 24 geographic regions of the United States . P-2 地区”)即属于俄亥俄州和密歇根州。 The Department of Housing and Urban Development has established four home ownership management centers in Philadelphia, Atlanta, Denver, and Santa Ana, of which the second geographic area managed by the Philadelphia Center (hereinafter referred to as the " P-2 area") belongs to Ohio and Michigan. 2006 12 19 日同意由查普曼律师事务所为 P-2 地区的住房提供从 2007 1 1 日到 2007 12 31 日为期一年的管理和营销服务。 In that year's service procurement, Chapman Law Firm in the United States filed an objection to the winning bid and initiated litigation procedures. After a long-term lawsuit, the Ministry of Housing and Urban Development revised the procurement decision twice until December 19 , 2006. Japan agreed to provide Chapman Law Firm with one-year management and marketing services for housing in the P-2 area from January 1 , 2007 to December 31 , 2007 . H.2 条也规定了政府有权增加服务所覆盖区域的选择权条款,即为“政府能够以合同修改的方式单方面地增加合同中的服务区域。增加服务区域的价格应该和之前区域价格一致,如果有任何改变造成之前商议的价格增加或减少的,承包人可以自收到书面改变通知之日起 30 日内主张作公平的调整。” The service contract requires that the government has the right to choose to extend the service period of the year no more than four times. At the same time, as in all other regions, the Chapman law firm contract also stipulates in Article H.2 of the contract The clause that the government has the right to increase the area covered by the service means that "the government can unilaterally increase the service area in the contract by way of contract modification. The price of the increased service area should be the same as the previous area price, if there is any change If the previously negotiated price increases or decreases, the contractor may claim a fair adjustment within 30 days from the date of receipt of the written change notice . "

·穆斯利援引与业绩相关的问题,确定住房和城市发展部不会行使与查普曼律师事务所续约的选择权,并在2007 12 28 日以书面形式通知了查普曼律师事务所。 Moline Mosley , the procurement contract officer of the Ministry of Housing and Urban Development, cited performance-related issues and determined that the Ministry of Housing and Urban Development would not exercise the option to renew his contract with Chapman Law Firm, and in December 2007 Chapman Law Firm was notified in writing on the 28th . 135 天的过渡期外,查普曼律师所的合同于 2007 12 31 日到期。 Except for the 135- day transition period, Chapman's contract expired on December 31 , 2007. P-2 地区的资产正处于“转出”阶段。 As a result, assets in the P-2 area managed by Chapman LLP are in the "swap out" phase. 2008 1 1 日至 2 29 60 天内可以继续接受新的工作任务指派,但在接下来的 75 天里,新的工作任务将指派给继任者,查普曼律师事务所继续管理其原有库存中的房产。 Chapman Law Firm can continue to accept new assignments within 60 days from January 1 , 2008 to February 29 , 2008 , but within the next 75 days, new assignments will be assigned To his successor, Chapman Law Firm continues to manage the properties in its original inventory. 5 14 日,合同期满 135 天后,查普曼律师所的工作将全部结束。 On May 14 , 2008, after the contract expires 135 days, the work of Chapman Law Firm will be completed.

Dispute over government procurement

1 7 日,住房和城市发展部单一家庭资产管理办公室的董事万斯莫里斯建议利用 H.2 条款将 P-2 地区的法律服务工作内容转移给现任的有充足履约能力的管理和营销服务供应商。 On January 7 , 2008 , Vance Morris, director of the Office of Single Family Asset Management of the Ministry of Housing and Urban Development, proposed to use the H.2 clause to transfer the legal service work in the P-2 area to the current management and Marketing service provider. P-2 区域存在大量房产,莫里斯建议将该区域划分成两个区域,一个是俄亥俄区域,一个是密歇根区域。 Due to the large number of properties in the P-2 area, Morris suggested dividing the area into two areas, one for the Ohio area and one for the Michigan area. Morris also wanted to show the performance of the current contractor's performance in the form of a score list, and his method was eventually adopted.

Morris also introduced a method to include current eligible suppliers on a short list based on performance scores and performance capabilities, which was later used by contractors who manage and market service procurement in Ohio and Michigan adoption. H.2 条款来直接扩大供应商的服务,而是询问四个被挑选出来的供应商是否愿意扩大服务区域,如果愿意,请他们在 2008 1 18 日就俄亥俄州和密歇根州区域给出每个区域的服务报价。 In the implementation process, the Ministry of Housing and Urban Development did not unilaterally invoke the H.2 clause to directly expand the services of the suppliers, but instead asked the four selected suppliers if they were willing to expand the service area. If so, please ask them in 2008. A service quote for each of the regions of Ohio and Michigan was given on January 18 , 2008 1 31 日援引了第二条款来修改其中的两个合同。 After determining which price would be best for the government, the Ministry of Housing and Urban Development invoked a second clause on January 31 , 2008 to modify two of the contracts.

Following the termination of legal services in Ohio and Michigan, the Department of Housing and Development adopted a direct expansion of existing procurement contracts and reselected management and marketing providers for real estate in these two regions without restarting new government procurement The project did not provide Chapman Law Firm with the opportunity to re-compete legal services contracts in these two areas through government procurement procedures. 1 17 日,查普曼律师事务所提起了本案的诉讼,声称自己已经准备好并愿意继续为俄亥俄州和密歇根州区域提供服务,而住房和城市发展部不适当地排除了他们提出投标报价的机会,故诉请求法院要求发布禁令而停止住房和城市发展部以修改合同的方式将该两个区域的法律服务工作交给现有其他区域的服务供应商,或者禁止住房和城市发展部在排除了查普曼律师事务所参与竞争的情况下开展该项服务采购竞价工作。 On January 17 , 2008, Chapman LLP filed a lawsuit in this case, claiming that it was ready and willing to continue serving the Ohio and Michigan region, and the Department of Housing and Urban Development inappropriately ruled them out Opportunity to bid for the offer, and the court requested the court to issue an injunction and stop the Ministry of Housing and Urban Development to modify the contract to hand over legal services in the two regions to existing service providers in other regions, or to prohibit housing and urban development. The ministry carried out the bidding for procurement of this service without the participation of Chapman Law Firm.

The Federal Claims Court's hearing of the case

The Federal Claims Court has jurisdiction over protests before and after the award of a government procurement contract. In this case, Chapman Law Offices did not protest a contract award, but argued that government agencies had not complied with the U.S. Contract Competition Act. Competitive government procurement services determine supplier requirements. Such lawsuits require courts to force the government to take measures to allow potential suppliers to obtain full and open competition, which is within the jurisdiction of the court. The court reviews the actions of government agencies based on criteria set out in the Administrative Procedure Law. Under the Administrative Procedure Act, protesters can dispute government action on two grounds. First, the purchasing department's decision lacks a reasonable basis. Second, procurement methods and procedures violate laws and regulations.

The court held that the Contract Competition Act imposes on government agencies the responsibility to achieve full and open competition in government procurement. However, this requirement does not apply to contract modifications within the scope and under the terms of existing contracts. “主要改变原则”。 To determine whether the amendment was beyond the scope of the original contract, the court adopted the "principal principle of change". When the government makes a substantial modification to the contract, which causes the supplier to perform its obligations substantially different from the previous transaction, this should be considered a major modification. If the contract is substantially modified beyond the scope of the original procurement, then the requirements of the Contract Competition Law shall apply. Therefore, the court should check whether the supplier is informed of the possibility of the change and whether the supplier has predicted the modification. In this case, it was not disputed that the revised contract required suppliers to provide the Ohio and Michigan regions with services that were consistent with what they provided for other regions. Only the expansion of service areas and prices may change. These two changes are foreseeable. 条款,允许住房和城市发展部可以通过合同修改方式单方面增加服务区域,所有的供应商都可以预见到住房和城市发展部这种合同修改的可能性。 Each management and marketing service contract has H.2 clauses, allowing the Ministry of Housing and Urban Development to unilaterally increase the service area through contract modification. All suppliers can foresee the possibility of such a contract modification by the Ministry of Housing and Urban Development. Sex.

In order to argue that the Ministry of Housing and Urban Development has stated that it has the right to modify the contract, Chapman Law Offices argues that the government's recruitment of the best incumbent suppliers cannot be regarded as an amendment to an existing contract, but rather A new contract is concluded through tendering. However, Chapman's claims fail to capture the gist. When applying the principle of major change, the court is mainly concerned with whether the characteristics and modifications of the work to be done are within the expectations of the original supplier. If there is no substantial difference in the work under the modified contract, and the supplier is informed of the possibility of a contract change, this modification is a modification made within the scope of the original contract. The court will not impose additional restrictions on the way government agencies modify contracts. The Ministry of Housing and Urban Development believes that investigating and understanding potential quotations acceptable to suppliers before the change is more advantageous to them than receiving a request for fair adjustment after the fact, and the court has no right to question the validity of this method. In any case, the Ministry of Housing and Urban Development's selection of limited qualified suppliers should not be random. In this case, the Ministry of Housing and Urban Development compiled a list of all incumbent suppliers and narrowed it down to four law firms based on past performance ratings and capabilities. They want to know who is willing to provide new services at the lowest price. In this way, they can find a supplier familiar with the job at a low price. This is a way of modifying the contract rather than creating a new one. As long as the amendment is within the scope of the original contract, the court should respect this decision.

In the end, Chapman Law Firm argues that it should be among the potential suppliers, and if it has been considered and fairly evaluated, it has already got the job. 2007 12 31 日到期,所以在他们寻找有资历的供应商并让挑选出的四家供应商提出价格提议时,查普曼律师事务所已经不在可以修改合同增加服务区域的现任供应商之列了。 However, the Ministry of Housing and Urban Development has selected its contract with Chapman Law Firm to expire on December 31 , 2007, so when they look for qualified suppliers and have the four selected suppliers submit price proposals , Chapman Law Firm is no longer in the current supplier who can modify the contract to increase the service area. Whether the Ministry of Housing and Urban Development has a fair assessment of Chapman's performance, and whether it is appropriate to end the contract with Chapman's law firm is not a dispute in this case. To sue. For these reasons, the court rejected the plaintiff Chapman's lawsuit and supported the defendant's claim.

Enlightenment on procurement evaluation of service projects in China

Government procurement of service projects often faces difficulties in setting evaluation standards in the review. Because the service is intangible and one-time, service provision and service consumption are often synchronized, non-storable, and the service experience is different due to the individual differences of service recipients, making it difficult to evaluate the service quality itself . And because services and service providers are inseparable, in government procurement service projects, the selection and evaluation of the procurement target, that is, the service itself, often eventually evolves into an evaluation of the service provider. In many of the government procurement lawyer's legal service projects that the author has contacted, in addition to emphasizing low quotations, many of the scoring standards are designed for the size of the law firm's office area, the number of registered lawyers, and the proposed service team lawyer How many years of implementation, how many similar past work performance and other service providers themselves are selected, but whether the level of the service provider is consistent with the level of one-time services to be provided is uncertain. Because the services it provides will happen in the future. Compared with the procurement of goods and projects, the selection of service procurement suppliers is more difficult, because the evaluation of future services itself is blind. “靠谱”的服务提供者,在将来提供的服务中却未必能让采购人满意,且服务质量的考评因服务的不可存储和受众感知差异而难以进行。 This may cause a phenomenon that the seemingly “reliable” service providers determined through the review may not be able to satisfy the purchaser in the services provided in the future, and the evaluation of the service quality may be due to the unstorable and Audiences perceive differences and make it difficult.

In the aforementioned government procurement disputes filed by the US law firm, we saw that the US government department did not conduct a full re-tendering and procurement of each year's service content when selecting a housing management legal service provider, but stipulated in the procurement contract. The right to renew the terms and the right to adjust the terms of adding services. This design of contract terms can give the purchaser greater freedom to choose the right to continue the contract, and can make decisions based on the actual performance of the contract. The buyer in this case sorted out the actual performance of the legal service provider of the same batch of service procurement contracts, exercised the option to expand the scope of services specified in the existing contract, and made decisions in the best interests of the government. Approved by the court. But as protested by the prosecution law firm, this approach may preclude negative effects from full competition. This is the same as that in many places in China where government procurement projects for property management services are being carried out, and no more than three renewals are allowed after a one-year purchase. However, this system design should be necessary to balance the competitiveness of government procurement and the blindness of service procurement review.

(Author: Tianjin Foreign Studies University)

I have something to say

Although this case happened in the United States more than ten years ago, since the establishment of China's government procurement system was later than some developed countries, this case still has great reference significance for the setting of service procurement contract content. At the same time, readers are welcome to write useful articles on foreign government procurement and submit them to this newspaper.