Guidelines for OAG Assistance in Procurement and Contracting
The Office of the Attorney General is available to assist client agencies through every step of the process of procuring and administering contracts. This includes but is not limited to contracts for goods, services (both professional and non-professional), information technology, and construction.
Advice can be provided during the initial procurement process, to include:
- Assistance with preparation of the solicitation, compliance with policies and regulations, and questions arising during evaluations and negotiations
- Help in drafting key provisions of the contract to mitigate or allocate risk or obtain other objectives
- Review of the final proposed contract
- Direction on handling procurement protests
- Guidance on responding to requests for documents
Advice is also available during the life of the contract, to include:
- Assistance with contract administration, modifications and renewals
- Help with claims and disputes
- Contract close-out issues
In the unlikely event that a procurement protest or contract dispute goes to court, the Office will provide representation to the purchasing agency.
We particularly suggest that agencies seek legal assistance when developing high-risk contracts and when developing or using non-standard provisions. High-risk contracts can be reviewed for legality and substance, as well as an indication of whether the contract is sufficient to achieve the agency’s objectives. Such a review may help in maximizing the Commonwealth’s contract value, while obtaining assistance with non-standard provisions will minimize risk of a conflict with another provision or the risk of inadequately protecting the Commonwealth.
Some contracts (such as certain transfers of real estate) are statutorily required to be approved by the Office as to form. “Approval as to form” means that the contract includes all mandated provisions, and that the contract does not include any terms which would be illegal or beyond the approval authority of state contract officers. Broader services are also available as indicated above, even though the statutory requirement for approval relates only to the form of contract.
To obtain legal assistance, clients should contact their assigned agency counsel within the Office. If an issue is outside agency counsel’s area of expertise, counsel can coordinate with other sections within the Office to gain further expertise, or to obtain outside counsel if that becomes necessary. In most cases, especially in high-risk or complex procurements, it is most effective to include counsel early. The time required for legal review of a proposed contract will vary depending on the complexity and length of the contract, as well as on how involved the attorney has been at earlier stages of developing the contract. Agency counsel can advise on the appropriate time needed to provide review or feedback in specific instances.