CBOC Should Select it's Own Independent Legal Counsel. How Can this be Done Without Violating Legal Requirements for Procurements?

FAQ 42

CABOC Recommends that CBOCs have their Own Independent Legal Counsel

and that Each CBOC Selects it’s Independent Legal Counsel. How Can this be

Done Without Violating Legal Requirements for Procurements?

First, CABOC recommends that any CBOC that so desires should be able to have its own independent legal counsel (ILC), working for and answerable only to the CBOC, not performing any other work for the district that the CBOC oversees, and that the CBOC select its own ILC.  Further, the cost of the CBOC’s ILC should be paid by the district that is being overseen out of non-Prop. 39 bond funds.

To be clear, this recommendation should not be interpreted to mean that the procurement and contracting process for the CBOC’s ILC should be performed solely by the CBOC, nor that the standard statutory, regulatory, and local processes and procedures should not be followed.  Rather, CABOC recommends that the CBOC work with the appropriate offices of the district that it oversees, specifically including the procurement department, to conduct a procurement that is fully compliant with all such requirements – but where the CBOC makes the key decisions.

The first steps are to; (a) consider if the CBOC’s work would be enhanced by having its own ILC, (b) determine the desired legal expertise and qualifications of the ILC, and (c) prepare a preliminary scope of services and estimate the annual hours of work that is expected to be required.  The next step is to meet with the district’s top administrator and/or board members to produce a joint plan to execute the procurement, fine-tuning the CBOC’s initial estimates.

Each CBOC should determine its own needs based on its local conditions, but CABOC suggests considering the following:

  1. To be considered, candidates cannot currently be performing any work for the district that the CBOC is overseeing, have not done any work for the prior three years for the district, and may not do any work for the district while engaged in serving the CBOC.
  2. In many of the larger and medium-sized metropolitan areas in California, there are law firms that have the specialty of serving as contract legal counsel for small and mediumsized local governmental units, which equips them with knowledge and experience in the Brown Act, government procurement, human resources, and other common general governmental legal and administrative matters.
  3. Experience with a governmental entity with major construction projects and programs.
  4. Experience with Prop. 39 school construction bonds

In determining what services will be desirable, the following should be considered:

  1. Does the CBOC expect ILC to review meeting agendas and materials before meetings?
  2. Does the CBOC expect ILC to attend all CBOC meetings? Subcommittee and task force meetings?  Meetings with the district administrators and governing board members?  Meetings with legal counsel to the district being overseen and bond counsel?
  3. Will ILC be reviewing CBOC reports, such as the required public reports?
  4. Are there any expected special problems, or special projects, that may require the involvement of ILC?
  5. Many attorneys and firms with large local governmental practices have significant general government experience and can be useful business and legal advisors to a CBOC – is this desired? If so, how much, and how often?
  6. What will be the line of communications between the CBOC members and the ILC, and other parties?
    1. Will ILC communicate only with the CBOC Chair? CBOC officers only?  Any CBOC members that have legal questions?
    2. Will district staff be able to contact the ILC? Members of the public?
  7. Will ILC be performing any other services, such as the administrative work to prepare meeting agendas, agenda packages, and minutes of meetings, or managing the CBOC website?
  8. Consideration of a contingency for unanticipated work may be wise.

All governments have procurement functions that have established their more-or-less standard types of language for requests for proposals (RFP) for professional services and contracts that include most of the necessary “boilerplate” requirements.  The Chair or other designated CBOC member(s) should meet with the procurement personnel to understand how the procurement will work, which will include the items discussed above and what variances are required for the CBOC ILC procurement and contract.  The RFP should include the following:

  1. The necessary qualifications
  2. Scope of services
  3. Term of service (generally, no more than five years)
  4. Type of contract (generally, time and materials, with hourly rates and specified out-of-pocket expenses, such as travel to CBOC meetings)
  5. Selection criteria and weight for each factor:
    1. Firm experience, particularly with California local governments and Prop. 39 programs.
    2. Qualifications of the personnel to be assigned to the CBOC (it is generally best to have one primary contact who will handle most of the ILC work for the CBOC, but also a backup if the primary is unavailable for any reason)
    3. Work program, demonstrating the ’firm’s and personnel’s ability to be assigned to do the work desired
    4. References
    5. Cost proposal
  6. Procurement schedule
  7. Administrative requirements, such as the necessary forms and certifications required of all government contractors.

Once this is completed, we recommend that all firms’ proposals be reviewed by a committee of CBOC members and procurement department staff.  Before the proposals are received, there should be a meeting of all involved personnel, CBOC and procurement, so that everyone understands their roles, what to do, and what not to do, such as keeping all information regarding the procurement, proposers, scoring, etc. confidential until the procurement is completed and the contract is awarded.  The procurement department personnel should be responsible for the technical aspects of the proposal (all required forms included, proposals submitted on time, firms not violating no-contact during procurement limitations, etc.), and the CBOC members should then score each proposal on the evaluation factors (in some entities, the cost proposals are submitted separately and are not considered until after the technical scoring is performed).

A common practice is for each person scoring the technical proposals to read and score each technical proposal independently on separate scoring sheets for each proposal.  When all the scoring sheets are completed, they are consolidated on a single page, and the scorers meet to discuss the firms and attempt to achieve or at least approach a consensus score – and to identify what could be “fatal flaws” or major concerns.

Generally, if more than a few firms submit, the top-ranked firms are “short-listed” and invited in for oral interviews.  The interview panel should include all the CBOC members on the selection team, procurement, and perhaps other district personnel.  CBOC members should be carefully briefed on how the oral presentation will be done and what they may and should not do.  Most commonly, each proposing firm will be given a show-up time and an outline of what they are expected to cover in their presentation with a time limit for their presentation.  A good practice is to require that the attorney that will be the primary contact with the CBOC will be the speaker for the significant portion of the presentation.

Another common practice is to prepare a list of questions that each firm will be asked in an identical matter (if not covered in the presentation) in the oral presentation.

A common practice is for each selection committee member to score each presenting firm as they speak, make adjustments to their scores after the last presentation as they see fit, and only then share the scores.  At this time, the selection committee will discuss the strengths and weaknesses of each firm, and the members will attempt to work towards consensus on their selection.  Procurement personnel should be present to ensure that no rules are violated, the process is performed correctly, and to advise if there are any perceived issues, such as a potential conflict of interest.

There are various methods to factor costs into the evaluation and selection.  The CBOC should work with procurement to establish a process with which all parties can work.

(See also FAQ 20, “Should a CBOC take legal advice from the school district’s lawyer?”)