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HomeMy WebLinkAboutPROCUREMENT SOP #14 - Approval as to Legal FormRevision March 2023 Staff Contact: City Attorney Shane Moloney PROCUREMENT SOP #14 Approval as to Legal Form 1. Applicability: The legal department has developed a process to help guide project managers through the contracting approval process. 2. Process: Approval as to Legal Form: Before obtaining signatures on a contract or contract amendment from the city’s authorized signatory of the vendor, project managers must obtain approval as to legal form from their assigned attorney in the city attorney department. This requirement of legal review applies to all contracts except off- the-shelf purchases. Attorney Client Privilege: All communications with the city attorney department seeking legal approval and advice should be treated as confidential and are meant to inform the project manager or other city employees involved in the contracting process as to specific legal risks to which the city may wish to accept, but in which event should not publicly disclose the nature of the identified risks. Contents of attorney communications and advice should never be shared or forwarded to vendors unless the attorney specifically authorizes sharing. Sharing the substance of concerns raised by an attorney should generally be done without identifying the attorney communication itself, but instead restated as coming from the project manager or city generically without attribution to the attorney so that attorney client privilege is not waived. Attorneys may assist project managers with such communications if needed. Expedited Review: Legal review of contracts will be expedited when the contracts are provided to the assigned attorney (and legaladmin@rentonwa.gov) in a signature ready PDF that is based upon an applicable city contract template with all fields filled in, without material modification, all exhibits attached and labeled consistently with how they are referenced in the contract, and without vendor provided terms and conditions included in the exhibits that conflict with the city’s template. Detailed Legal Review and Negotiation: Submission of a contract for legal approval that is not on a city template, not filled out according to the template’s instructions, or includes vendor proposed terms that conflict with the city’s template contract (in exhibits or through changes to the template) is discouraged and will delay legal review and approval. Conflicting vendor provided or altered provisions that may cause delays and/or legal disapproval include but are not limited to confidentiality provisions, choice of law and venue provisions, limitation of liability provisions, insurance provisions, indemnifications provisions, and terms requiring payment of interest or penalties by the city for late payments, automatic renewals, or any substantive changes made to a competitively bid public works contract. Revision March 2023 Staff Contact: City Attorney Shane Moloney Early Legal Review: For unique contracts for which a template is not available or contracts that will likely include revisions to the city’s template contract form, project managers are encouraged to consult with their assigned attorney early in the process of planning for the project or as soon as the need for revisions are realized in order to minimize delays. Confidential discussion of risks, strategy, and other legal advice should be discussed prior to or in coordination with vendor negotiations whenever possible. Informed Acceptance of Contract Risks: If the assigned attorney identifies and advises of legal risks in the contract for which approval as to legal form is requested, the project manager may attempt to negotiate the problematic terms (with or without attorney assistance) or indicate a desire to proceed with the risks remaining in the contract. Acceptance of risks may be appropriate where the city lacks negotiation power with a vendor and there are no other reasonable or affordable alternative to accepting the vendor-imposed terms. In such circumstances, the assigned attorney may require consent and acknowledgement of the decision to accept the risk by HRRM and/or appropriate decision maker, which may include a division director, department administrator, the mayor, or city council – depending upon the perceived extent of the risks. Regardless of legal approval and other contract authorizations, project managers remain responsible for ensuring the scope of services and terms accurately reflect the terms by which the city is willing to be bound in the event of a dispute. Legal Review of Contracts Requiring Council Approval: City council policy and procedure 800-12 generally requires legal approval as to form prior to contracts being submitted to city council for approval. Contracts, including interlocal agreements and some grants, may require preparation of a formal city council resolution. To minimize delays, requests for legal approval and preparation of an accompanying resolution should be made no less than 14 business days prior to the department’s agenda bill submittal deadline.