Introducing Legally Speaking and a Legal Understanding Toolkit

Hello, and welcome to the first edition of Legally Speaking.  I am so excited to host a column on the NIGP Blog about the legal aspects’ procurement professionals deal with every day—something about which I am very passionate. Each month I will write about how we interact with the law and why understanding case law is so critical to our success in dealing with suppliers’ protests. This column is not meant to be taken as legal advice and, if the facts of a case I present are similar to a particular issue in your agency, discuss the details with your agency’s legal counsel. 

So, to begin, let’s talk about some terms and legal theories which will help all of us build a common foundation of understanding.   

First, we know that there are three types of law 

1) statutory, constitutions, and legislative acts  

2) administrative, rules and regulations of administrative agencies, and  

3) case or common law, binding interpretation of legislative acts.   

This column will focus on common law because the court’s interpretation of legislation is critical to how we conduct business.   

This brings us to precedent, or “Stare Decisis”, which is Latin for, “to stand by things decided.” When a court faces a legal argument, a protest of an intended award, if a previous court has ruled on the same or a closely related issue, then the court will make its decision in alignment with the previous court's decision.  Therefore, if a court has decided on a case with a similar set of facts to one in your agency, then you will have some guidance on how best to proceed.  

To other areas of which we need to be aware in our discussions are the authority of a particular court decision, and on whom a court decision is binding.  What do I mean by that? In a civil lawsuit, once the court has announced its opinion, then that decision is only binding on the two parties in the suit.  For our purposes, this would be the supplier and the agency.  

The first thing you need to do, when reading a court opinion is take note of the court — for example, whether it is a state or federal court — and the date on which the case was decided. These are critical factors because they relate to the very important differences between mandatory authority and persuasive authority. Whereas judges are expected to decide cases consistently with those of higher courts in the same system, they can consider but do not have to follow the decisions of other courts at their same level or from another system. 

If, however, a party appeals to a state court of appeals, (An appellate court, commonly called a court of appeal(s),(1) appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court), then the decision of the appellate court is binding on all parties within the jurisdiction of the appellate court. As a rule, decisions of the district courts of appeal represent the final appellate review of litigated cases. This appellate decision becomes the mandatory authority for any court case within the court of appeals’ geographic area, and it also becomes a persuasive authority for the rest of the courts within the state.   

My research and expertise are primarily in Florida, so I have provided two graphics to assist in understanding Florida’s court hierarchy, as an example.   

I hope this brings a little clarity to how protest litigation may be handled by the courts, and I look forward to sharing a “legally speaking” topic with you each month.