Elizabeth Bartz, President and CEO of State and Federal Communications, is presenting the second installment of the Public Affairs Council’s State Procurement Webinar Series. The webinar, “Procurement Prospects: Learning to lobby for government contracts,” will take place today from 2:00 to 3:00 p.m. EST.

Bartz will be speaking on state pay-to-play laws, the effective elements of a pay-to-play compliance program, and current trends in procurement.

According to the Public Affairs Council website:

Not adhering to the rules and regulations for acquiring government contracts could put your entire business at risk. Many of the laws for compliance in the procurement process differ from those commonly followed in other areas of government relations. Part two of this three-part series will cover how to build a sustainable state procurement compliance strategy and how to legally interact with government officials.

A Federal District Court has held Congress may constitutionally bar federal contractors from contributing to candidates, parties, and their committees.

Finding in favor of the Federal Election Committee (FEC), the United States District Court for The District of Columbia granted a summary judgment on Friday, November 2.

In Wagner v. FEC, the Court rejected challenges to the constitutionality of section 441c of Title 2 of the U.S. Code, which prohibits any vendors with contracts with the federal government from making political contributions to federal candidates or political parties.

The case, initially brought by the ACLU, asked the Court to declare the law unconstitutional as applied to individuals who have personal services contracts with federal agencies. Because federal workers who are not contractors may make federal political contributions, while contractors performing the same work may not, the suit argued section 441c violates both the Equal Protection Clause of the Constitution and the First Amendment.

The Court found no First Amendment or Equal-Protection violations, noting “the dissimilar roles of contractors and employees, moreover, justify the distinct regulatory schemes that the Government has fashioned.”

Lobbying

“Trade groups fear gift ban after the election” by Kevin Bogardus in The Hill.

Florida: “Senate president scolds lobbyists who opposed his candidates” by Mary Ellen Klas in the Tampa Bay Times.

Campaign Finance, Campaigns and Elections

“How the presidential campaigns are spending money, in one chart” by Sean Sullivan in the Washington Post.

“‘Super PACs’ Finally a Draw for Democrats” by Nicholas Confessore in the New York Times.

“Money trouble: Barack Obama faces a cash gap in the final weeks of the campaign” in The Economist.

“Attentive.ly, a Tool to Mine Your Supporters’ Minds, Just Launched” by Miranda Neubauer in TechPresident.

Pay-toPlay

“Goldman Sachs Will Pay $14.4 Million to Settle Pay-to-Play Cases” by Joshua Gallu, Michael McDonald, and Christine Harper in Bloomberg’s Businessweek.

Ethics

“Watchdog Groups Urge House Leaders to Fill Vacancies on Ethics Board” by Janie Lorber in Roll Call.

California: “After shoplifting plea, lawmaker seeks another office” by Michael J. Mishak in the Los Angeles Times.

Maryland: “Alston’s Maryland law license lifted for ethical violations” by David Hill in the Washington Times.

Procurement

“New federal contracting jobs site launches” by Kedar Pavgi in Government Executive.

President Obama has signed an Executive Order “to ensure that taxpayer dollars do not contribute to trafficking in persons.”

The Executive Order, “Strengthening Protections Against Trafficking In Persons In Federal Contracts,” signed yesterday, orders the Federal Acquisition Regulatory (FAR) Council to amend its regulations and implement specific requirements of federal contractors.

For example:

• Vendors will be required to agree to cooperate fully in providing reasonable access to allow audits, investigations, or other actions to ensure compliance;
• Contractors will be prohibited from charging employees recruitment fees;
• Contractors will be prohibited from destroying, concealing, and confiscating an employee’s identity documents, such as passports or drivers’ licenses; and
• Contracting officers will have a duty to notify the government if they become aware of any activities concerning the use of forced labor, trafficking in persons, and other specified illegal activities.

While the order is effective immediately, it will apply to solicitations issued after the FAR Council makes its rules. FAR has six months to realize the regulations.

Campaign Finance
“Ethics czar angers bloggers with proposal to shine light on campaign pay” by Patrick McGreevey in the Los Angeles Times.

“Contributions to PACs in Vt. may be known soon” by Dave Gram (Associated Press) in the Bennington Banner.

Lobbying

Minnesota:  “Lobbyist fined who donated to Davids’ campaign” by Heather J. Carlson in the Post-Bulletin.

Redistricting

Arkansas: “Judges uphold Senate district redistricting” by John Lyon in the Arkansas News.

Elections

Kansas: “Ex-lawmaker named elections official” by The Associated Press in the Lawrence Journal World.

Procurement

“Contractor suspensions and debarments on the rise, says White House” by Charles Clark in Government Executive.

Federal:

Skinny-Dipping in Israel Casts Unwanted Spotlight on Congressional Travel

Text ‘GIVE’ to Obama: President’s campaign launches cell phone donation drive

Twitter’s Role in the Upcoming Conventions

From the States and Municipalities:

California

Higher Lobbyist Fees Approved to Fix Campaign Finance Database

California

San Bernardino County: Contribution limits approved

Florida

Campaign Vendors Say Republican Congressman David Rivera Funded Democrat’s Failed Primary Bid

Illinois

Illinois House Expels Rep. Derrick Smith over Bribery Charge

Minnesota

Donor against Marriage Amendment Will Remain Unnamed

Missouri

Akin Says He’ll Stay in Senate Race, Heightening Tension within GOP

New Hampshire

Most Campaign Money Remains Hidden in New Hampshire

New York

Gifts End in $1.7 Million Deal

North Carolina

Despite Laws, NC Legislators Still Ask Lobbyists for Money

Oregon

Oregon Political Social Scene a Thing of the Past

Pennsylvania

Report Faults Ethics Board: Small staff and lack of authority cited

State and Federal Communications produces a weekly summary of national news, offering more than 80 articles per week focused on ethics, lobbying, and campaign finance.

News You Can Use is a news service provided at no charge only to clients of our online Executive Source Guides, or ALERTS™ consulting clients.

Trustees of the Houston Independent School District (HISD) hope to change ethics rules involving vendor contracting.

According to the Houston Chronicle, the new rules would require trustees to disclose relationships with vendors, prohibit trustees from voting on contracts where a vendor contributed $500 or more to a trustee’s political campaign, and prohibit vendors’ contributions while bidding for HISD contracts.

Last October, similar ethics changes were discussed but not implemented by HISD. The trustees are expected to vote on new policies in September.

Q. My company has existing, ongoing contracts with various state agencies. Sometimes, I have discussions with employees of these agencies (technicians, managers, and directors) regarding their use of my company’s products. Do I have to register and report as a lobbyist?

A. As a general rule for state-level lobbying, as long as discussions are limited to the evaluation and servicing of existing contracts, this type of activity will not typically be considered lobbying, the definition of which often includes influencing executive branch action.

However, in some states, executive branch action encompasses the state’s procurement process, including decisions to modify, extend, expand, or renew existing contracts. Once discussions of this type occur, lobbyist registration and reporting may be triggered, depending on the state’s specific time and expenditure thresholds. Every state has different thresholds, and requires its own specific analysis.

Here are some important things to track when evaluating whether you need to be registered in a specific jurisdiction:

1. Who are you talking to? In jurisdictions requiring registration for procurement lobbying, registration may hinge on whether the agency employee is considered a covered official. In some states, covered official is broadly defined to include all employees, while other jurisdictions require registration and reporting for attempting to influence directors or other major decision makers.
2. How many contacts have you had with the agency? How much time have you spent? Some jurisdictions require registration before the very first contact, while other jurisdictions require registration and reporting once you spend a certain amount of time engaging in procurement lobbying. You may need to determine your pro-rata share of compensation for time you have spent preparing for and engaging in the communication.
3. Is there a pending RFP or a contract renewal on the horizon? In some jurisdictions, the timing of your conversation with an agency official is important. Is there a pending decision before the state agency which would affect your company’s bottom line? If so, registration as a lobbyist may be required before engaging in communication which could be perceived as influencing the decision making process.
4. Did you expend any money on behalf of agency employees or officials? In some jurisdictions, registration may be triggered by expenditures on behalf of employees or officials.

You can directly submit questions for this feature, and we will select those most appropriate and answer them here. Send your questions to: marketing@stateandfed.com.

(We are always available to answer questions from clients that are specific to your needs, and we encourage you to continue to call or e-mail us with questions about your particular company or organization. As always, we will confidentially and directly provide answers or information you need.) Our replies to your questions are not legal advice. Instead, these replies represent our analysis of laws, rules, and regulations.

Governor Andrew Cuomo has signed a bill he hopes will help ease the financial burdens facing some local governments within the state. Senate Bill 5525, which was passed by the state legislature in late June, allows all New York cities and counties to piggyback contacts from other cities and counties.

If a public contract already exists, a city or county may choose to use the contract already in existence, instead of having to solicit the work itself. In order to take advantage of this opportunity, the original contract must have followed all state and local laws involving the procurement of government contracts, including competitive bidding requirements.

The law takes effect immediately.

Campaign Finance

“Political Spending by Unions Far Exceeds Direct Donations” by Tom McGinty AND Brody Mullins in The Wall Street Journal.

“Campaigns to Compete for Ads During Olympic Games” by Nathan L. Gonzales in Roll Call.

Alaska:  “Committee weighs in on ethics of pre-election pledges” by Becky Bohrer (Associated Press) in the Fairbanks Daily News-Miner.

District of Columbia: “Jeanne Clarke Harris is charged in ongoing investigation of Mayor Vincent C. Gray’s campaign” by Mike DeBonis and Nikita Stewart in the Washington Post

District of Columbia: “D.C. activists deliver 30,000 signatures for ballot initiative to ban corporate contributions” by Nikita Stewart and Tim Craig in the Washington Post.

Idaho:  “Idaho Democrats use state seal for campaign email” by John Miller (Associated Press) in the Idaho Statesman.

Ethics

“Ethics panel clears Buchanan on charge of misleading Congress” by Jordy Yager in The Hill.

Procurement

Arkansas: “New Arkansas Site Reveals State Salaries” in Government Technology. “The contracts page offers details on contracts or individual purchase orders for more than $25,000. Construction contracts with a value of greater than $20,000 are also listed.”

Governor Jack Markell signed Senate Bill 212 into law in an effort to improve the online presence and public notice capabilities of the state’s procurement office.

The bill mandates that the state create, by May 1, 2013, a one-stop website which will post all bids with an estimated value of more than $50,000.

This website must be accessible to all contractors and the general public. Further, the website will allow the state’s municipalities to advertise their bidding opportunities on the same site.

Both houses of the New York state Legislature recently passed a bill aimed at lowering procurement costs for municipalities. Senate Bill 5525 authorizes state municipalities to piggyback off existing public contracts entered into by the federal government, any state, or any municipalities within those states.

New York state municipalities will still have to abide by state contracting rules when utilizing this piggybacking ability. Therefore, the original contract must have utilized competitive bidding when necessary and the municipalities must still comply with the laws regarding minority and women owned businesses as well as any preferred source requirements.

The bill will now head to Governor Andrew Cuomo’s desk where he will decide whether to sign it into law or veto it.

Photo of the New York State Capitol by UpStateNYer on Wikipedia.

Sarah Kovit is a Compliance Associate at State and Federal Communications who is a fluent Spanish speaker and who has experience working with Puerto Rican officials and tracking newly enacted legislation. She is here to assist you with your Puerto Rican compliance needs.

According to Kovit: “Navigating the lobbying, political contribution, and procurement lobbying laws in Puerto Rico can be tricky. English copies of newly enacted legislation are rarely available and English language assistance with your questions is not always available. In the last year alone, Puerto Rico has passed a new election code, updated the PAC reporting structure, and created a pay to play law which affects organizations conducting business in Puerto Rico.”

You can contact Sarah Kovit at skovit@stateandfed.com.

The 18 month time-limit prohibiting political contributions under New Jersey’s pay-to-play law starts from the time when bids for a request for proposals (RFP) are submitted, a court has ruled.

The Appellate Division of the Superior Court of New Jersey affirmed a decision prohibiting Langan Engineering & Environmental Services, Inc. from contracting with the New Jersey Schools Development Authority because of a political contribution given prior to Langan’s submission of its bid. Langan had submitted its bid on the due date for the RFP.

The Court examined the language in N.J.S.A. §19:44A-20.14, which describes the prohibition period as “within the 18 months immediately preceding the commencement of negotiations for the contract or agreement.”

The Court reasoned, “[W]e deem the point at which bids are submitted to be the time when ‘negotiations’ occur. Stated differently, because the submission of the bid is the triggering event culminating in the eventual award of a contract, and because the term ‘negotiations’ suggests a point in time at the beginning of the contracting process … the term ‘negotiations’ describes the point in time when bids are submitted. Consequently, we conclude that the agency’s receipt of bids constitutes the ‘commencement of negotiations’.” It rejected the appellant’s contention that a disqualification period begins on the day a political contribution is made, and continues for the next eighteen months.