American Bar Association (ABA) Model Procurement Code (MPC) – Materials

Current MPC Materials

Historical MPC Materials

Research Materials

Academic Reform Proposals

GW Law Student MPC Reform Proposals – 2013 (working papers presented at ABA annual meeting)

GW Law Model Procurement Code Seminar – Students Present Reform Proposals

Adoption of the Model Procurement Code

F. Trowbridge vom Baur, A Personal History of the Model Procurement Code, 25 Pub. Cont. L.J. 149 (ABA 1996): Trowbridge vom Baur was one of the first general counsels of the Navy and, as a leader in the ABA Public Contract Law Section, pivotal in the launch of the Model Procurement Code. According to the Navy’s own history, as general counsel for the Navy, he made the Department of the Navy “one of the first agencies to use law school students, while setting the stage for later recruitment.”

National Association of State Procurement Officials (NASPO), Survey of State Procurement Practices (2018): “NASPO supports implementing the 2000 American Bar Association (ABA) Model Procurement Code’s provisions into state procurement laws. Sixty percent of the [48] jurisdictions responding to the survey indicated that they have adopted the provisions of the Model Code partially or in its entirety. Of these states, the majority implemented all provisions of the 2000 ABA Model Code, or modeled their procurement codes after it.”

States that have adapted or adopted the MPC (by Keith McCook)

W. Noel Keyes, Some Approaches Toward A Uniform Code for State and Local Government Procurement—A Condition Ripe for a Solution, 6 Urban Law. 763 (ABA 1974) (available on JSTOR) (includes early history of MPC)

“Cross-Walk”: OMB Grants Guidance vs. MPC

A core purpose of the Model Procurement Code is to serve as a tool for federal grantees that need to meet the guidance for grantees published by the U.S. Office of Management & Budget (OMB Uniform Guidance). A cross-walk comparing the OMB guidance and the 2000 MPC, as of October 2022, is here. In October 2023, OMB published proposed changes to the Uniform Guidance, which would include significant changes to the procurement requirements for those receiving federal assistance.

Debarment

Francis Kiley, Cross Debarments in the United States (2017): Abstract – This paper examines the advisability of federal and state governments in the United States (U.S.) establishing automatic, cross or reciprocal debarment arrangements to protect themselves from corrupt contractors.  The paper considers the advantages and disadvantages of such automatic, reciprocal arrangements.  It considers whether, without them, other measures (e.g., improved communications or cooperative action) would provide some of the benefits of automatic, reciprocal-debarment arrangements, without the perceived disadvantages.  The paper examines suspensions and debarments at the federal level.  Insights obtained from this examination are then used to analyze the desirability of automatic, reciprocal debarments at the state level.  The paper considers the current state rules, procedures, and processes.  Ultimately, the paper concludes that automatic, cross debarment arrangements between states or between the states and the federal government would not be advantageous.  The benefits of automatic, reciprocal debarments would be insignificant, and sacrificing discretion and sovereignty, in allowing another jurisdiction to determine automatically the fate of contractors within one’s own jurisdiction, would not be worth the small advantages that may occur. (Editor’s note: this paper includes a survey of state debarment systems.)

  • Frank Kiley’s notes and Christopher Yukins’ slides for 23 September 2021 ABA joint meeting of the Suspension/Debarment and State & Local Committees, on state debarments and possible reforms to the Model Procurement Code.

Organizational Conflicts of Interest (OCI’s)

As Trowbridge vom Baur pointed out in his history of the MPC (above), a key role for the MPC has always been to provide a model for federal grantees that want to ensure that their procurement processes, when using federal grant funds, conform to the Office of Management & Budget (OMB) grants guidance. The 2000 version of the MPC is silent on OCI’s.

The updated OMB grants guidance calls for (among other things) federal grantees to have organizational conflict of interest (OCI) protections in place. Specifically, section 200.318 of the OMB guidance says that if a “non-Federal entity [a grantee] has a parent, affiliate, or subsidiary organization that is not a State, local government, or Indian tribe, the non-Federal entity must . . . maintain written standards of conduct covering organizational conflicts of interest. Organizational conflicts of interest means that because of relationships with a parent company, affiliate, or subsidiary organization, the non-Federal entity is unable or appears to be unable to be impartial in conducting a procurement action involving a related organization.”

Resources on OCI’s:

  • Minnesota: Minn. Stat. 16C.02, subdivision 10a, defines OCI’s. Minn. Stat. 16C.04, subdivision 3, says that the Commissioner of Administration must take reasonable measures to address OCI’s, and allows for limited waivers. A state regulation, Minn. R. 1230.0750, addresses OCI’s. The state Department of Administration has promulgated an Organizational Conflict of Interest Policy.
  • South Carolina: Section 11-35-1840 of the South Carolina Code of Laws, within Title 11, Chapter 35, South Carolina Consolidated Procurement Code, provides that the board (the governing body of the State Fiscal Accountability Authority “may promulgate regulations to prescribe responsibilities, general rules, and procedures for identifying, evaluating, and resolving organizational conflicts of interest. The aims of such regulations are preventing the existence of conflicting roles that might bias a contractor’s judgement, and preventing unfair competitive advantage.” (History: 2019 Act No. 41 (S.530)) A South Carolina regulation, S.C. Code Regs. § 19-445.2127, discusses OCI’s and how they should be addressed. The South Carolina State Fiscal Accountability Authority, Division of Procurement Services, has adopted Organizational Conflicts of Interest: Procedures, Guidance and Information (vers. 1.0, June 2023).
  • Tennessee: Policy Number 2013-009, Central Procurement Office of the State of Tennessee, Business Conduct and Ethics Policy and Procedures (May 28, 2013, as amended Aug. 17, 2017) (see, e.g., section 8, which addresses OCI’s).