Who has to approve a Maryland state agency's sole source contract for an expert witness in litigation, the budget agency or the Attorney General?

Plain-English summary

Maryland's State Highway Administrator asked the Attorney General in 1989 whether a "sole source" contract for expert witness or consultant services had to be approved by the Department of Budget and Fiscal Planning ("DBFP"), the agency that normally signs off on service contracts, in addition to the Attorney General. The Procurement Law's sole source statute, SF §13-107, actually creates two different kinds of sole source contracts: one under subsection (a), for ordinary situations where only one source can provide the goods or services, and a separate, narrower one under subsection (b), specifically for litigation, real property appraisal, or collective bargaining matters where confidentiality is required. The Attorney General concluded that subsection (a) contracts still need the normal "any other approval required by law," including DBFP's, but subsection (b) contracts need only the Attorney General's approval, because the General Assembly used different approval language for the two subsections and because subjecting litigation-related consultant contracts to another agency's review could interfere with the Attorney General's constitutional authority over the State's legal business and with confidentiality that protects the State's legal strategy.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

In 1989, did DBFP have to approve a Maryland agency's sole source contract for a litigation expert? No, according to this opinion, if the contract was awarded under SF §13-107(b) because it involved threatened or pending litigation, real property appraisal for State acquisition, or collective bargaining, and required confidentiality. The opinion concluded only the Attorney General's approval was needed for that category of contract.

What about a sole source contract awarded just because there was only one available vendor? That is a different category, covered by SF §13-107(a), and the opinion concluded those contracts still needed the ordinary "any other approval required by law," which would include DBFP or the Board of Public Works, in addition to the approval of the unit head.

Why did litigation-related sole source contracts get special treatment? The opinion reasoned that requiring public disclosure of the scope of a litigation consultant's work, as ordinary procurement procedures would, could reveal the State's legal theory and strategy to an adversary, and that subjecting the choice of litigation consultants to another agency's approval could interfere with the Attorney General's constitutional role as the State's lawyer.

Did this rule only apply to agencies represented by the Attorney General's office? No. The opinion concluded that SF §13-107(b)'s Attorney General approval requirement applied even to agencies represented by independent counsel rather than the Attorney General, since the same confidentiality and legal-judgment concerns applied regardless of who represented the agency.

Background and statutory framework

Maryland's Procurement Law ordinarily requires agencies to solicit competing offers through methods like competitive sealed bidding or competitive sealed proposals, and to obtain approval from the Board of Public Works or the agency with oversight of that type of contract, DBFP for "services" contracts. SF §13-107, however, lets an agency skip that process through "sole source" procurement in two distinct situations. Under SF §13-107(a), if a procurement officer determines there is genuinely only one available source for something, the agency may contract with that source without competition, but must still obtain the unit head's approval and "any other approval required by law." Under SF §13-107(b), enacted as part of the 1986 general revision of the Procurement Law (Chapter 840, Laws of Maryland 1986), an agency may enter a sole source contract for a contractor to represent the State in connection with threatened or pending litigation, real property appraisal, or collective bargaining, if the work requires confidentiality, but this subsection's own text requires only "the prior written approval of the Attorney General," dropping the "any other approval required by law" language used everywhere else in the statute.

The opinion treated that difference in statutory wording as deliberate, applying the rule that a specific statutory provision governs over a more general one covering the same ground, and noted that Kaczorowski v. City of Baltimore requires reading statutes in light of their full context, including related provisions enacted together. It also grounded its conclusion in the practical and constitutional stakes of litigation-related contracts: publicizing the scope of a litigation consultant's engagement, as the normal competitive-proposal process would require, risks tipping off an adversary to the State's legal strategy, and letting an agency other than the Attorney General control the retention of litigation experts could interfere with the Attorney General's constitutional duty to supervise the State's legal business, a duty the opinion noted (citing Murphy v. Yates) cannot be transferred away by statute. The opinion applied this Attorney-General-approval-only rule even to state agencies represented by independent counsel rather than the Attorney General's office, reasoning that the same confidentiality and professional-judgment concerns justified the special approval process regardless of who represented the agency in the underlying matter.

Citations and references

Statutes:

• SF §13-107(a) and (a)(1)-(2), the general "only one available source" sole source authorization and its ordinary-approval requirement
• SF §13-107(b) and (b)(1)-(3), the litigation/appraisal/collective-bargaining sole source authorization requiring only Attorney General approval
• SF §13-107(c), the public notice requirement for contracts awarded under the section
• SF §11-201, the Procurement Law's general goals of fair, advantageous, and secure procurement
• SF §11-101(s), defining "services" to include attorneys, accountants, physicians, and consultants
• SF §§13-103, 13-104, 13-105(h), and 13-106(b) and (d), the competitive bidding, competitive proposal, real property lease, and noncompetitive negotiation procedures compared against sole source procurement
• SF §12-107(b)(2)(ii), the general provision giving DBFP approval authority over service contracts
• §6-102 of the State Government Article, listing agencies not represented by the Attorney General
• §§10-615(1), 10-618(b) and 10-618(e) of the State Government Article, the confidentiality exceptions available for the public notice required by SF §13-107(c)
• Chapter 840, Laws of Maryland 1986, the general Procurement Law revision that enacted SF §13-107(b)
• COMAR 21.05.03.02A, the competitive sealed proposal disclosure requirements discussed as a confidentiality risk

Cases:

• Kaczorowski v. City of Baltimore, 309 Md. 505, 516, 525 A.2d 628 (1987), on construing a statute in light of its full context, including related provisions
• Criminal Injuries Compensation Board v. Gould, 273 Md. 486, 495, 331 A.2d 55 (1975), on a specific statutory provision controlling over a general one covering the same subject
• State v. Burning Tree Club, Inc., 301 Md. 9, 34, 481 A.2d 785 (1984), on the Attorney General's constitutional role as the State's lawyer
• Murphy v. Yates, 276 Md. 475, 492, 348 A.2d 837 (1975), on constitutional-office duties not being transferable to another office by statute
• Yangming Transport v. Revon Products, 311 Md. 496, 509, 536 A.2d 633 (1988), on construing a statute to avoid a potential constitutional problem

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1989/Volume74_1989.pdf (this opinion appears at printed pages 230-237 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

PROCUREMENT LAW

"Sole Source" - Sole Source Contracts For Expert Witnesses Subject To Approval Of Attorney General Only

February 14, 1989

Mr. Hal Kassoff
State Highway Administrator

You have requested our opinion on whether the award of a contract for expert witnesses or other consultant services under the "sole source" procurement provisions of §13-107 of the State Finance and Procurement Article ("SF" Article) must be approved by the Department of Budget and Fiscal Planning ("DBFP"), as well as by the Attorney General.

For the reasons given below, we conclude that contracts awarded under the "sole source" authorization of SF §13-107(a) must be approved by DBFP. However, if a sole source contract for consulting or other professional services satisfies the various tests in SF §13- 107(b), the required approval is that of the Attorney General only.

I

Background

The procedures established for selecting the persons from whom State agencies will purchase needed goods and services are designed in general to obtain the most advantageous contract price for the State, to ensure that all prospective contractors are treated fairly, and to safeguard the integrity of the procurement system. SF §11-201. Accordingly, those procedures ordinarily require State agencies to select contractors through a process that involves public notice of the nature, scope, or terms of the contract to be awarded and the solicitation of bids or proposals from multiple potential contractors in competition with each other. SF §§13-103 (competitive sealed bids) and 13-104 (competitive sealed proposals).

Even when effective competition is not possible, the Procurement Law ordinarily requires a public announcement of the proposed contract and encourages discussions with all prospective offerors who respond to the announcement. SF §13-106(b) (noncompetitive negotiations). Further, when a contract is to be awarded on a basis other than competitive bidding, the Procurement Law ordinarily requires that the proposed contract be approved by the Board of Public Works or the procurement agency that has been charged with direct oversight of contracts of the relevant type. Control over contracts for "services" has been given to DBFP, "subject to any limitation in this Division II ['General Procurement Law'] ...." SF §12-107(b)(2)(ii).1

However, in some circumstances, agencies are permitted to enter into contracts without following the usual procedures of advertising the proposed contract and soliciting and considering offers from multiple prospective contractors. Under SF §13-107, an agency may in designated circumstances deal with only a single source for the goods or services needed:

(a) (1) Whenever a procurement officer determines that there is only 1 available source for the subject of a procurement contract, the procurement officer may award the procurement contract without competition to that source.

(2) Before awarding a procurement contract to a sole source, the procurement officer shall obtain:

(i) the approval of the head of the unit; and

(ii) any other approval required by law.

(b) (1) Subject to paragraphs (2) and (3) of this subsection, with the prior written approval of the Attorney General, a unit may enter into a sole source contract to obtain the services of a contractor in connection with:

1
SF §11-101(s) defines "services" to include "services provided by attorneys, accountants, physicians, consultants, and other professionals" (other than contracts for construction-related, architectural, or engineering services).

(1) threatened or pending litigation;

(ii) appraisal of real property for acquisition by the State; or

(iii) collective bargaining.

(2) This subsection applies only to a procurement in which:

(i) a unit obtains the services of a contractor to represent the State; and

(ii) the nature of the services to be performed requires confidentiality.

(3) This subsection does not apply if the unit reasonably can anticipate a continuing need for a contractor described in paragraph (1)(ii) or (iii) of this subsection.

(c) Not more than 30 days after the execution and approval of a procurement contract awarded under this section, a unit shall publish in the Maryland Register notice of the award.

II

Types of Sole Source Procurements

SF §13-107 establishes two classes of "sole source" procurement.
The first, described in SF §13-107(a)(1), applies to cases in which the agency's procurement officer "determines that there is only one available source for the subject of a procurement contract ...." Under those circumstances, an attempt to obtain offers from multiple prospective contractors would be futile. Hence, SF §13-107(a) permits the agency to "award the procurement contract without competition to that source," instead of carrying out the empty formality of public advertising and solicitation of bids or proposals.

The second class of sole source procurements is established by SF §13-107(b)(1). Under that provision, "a unit may enter into a sole source procurement contract to obtain the services of a contractor in connection with ... threatened or pending litigation; ... appraisal of real property for acquisition by the State; or ... collective bargaining." The language of SF §13-107(b)(1), unlike that of SF §13-107(a)(1), is not expressly limited to situations in which the person with whom the agency proposes to contract is in fact the sole source of the services needed. Instead, SF §13-107(b) applies if the contract concerns a subject matter identified in SF §13-107(b)(1) and the circumstances of the contract satisfy SF §13-107(b)(2), that is, the matter must be one in which the contractor is to represent the State and "the nature of the services to be performed requires confidentiality." Even then, if the contract relates to real estate appraisal or collective bargaining, it must not be for services for which the agency has a continuing need. SF §13-107(b)(3).

Thus, sole source procurement under SF §13-107(a) is available to accommodate those cases in which an attempt to seek out multiple prospective contractors would be merely an empty gesture. Sole source procurement under SF §13-107(b) is available to accommodate specially delineated cases in which the State has a need for confidentiality regarding the subject matter of the specified types of contract.

III

Contract Approval Requirements

The provisions governing procurements under procedures other than "sole source" contracting all include a requirement that the contract be awarded "[a]fter obtaining any approval required by law ...." SF §§13-103(e)(1) and (e)(3)(vi) (competitive bidding); 13-104(f) (competitive sealed proposals); 13-105(h) (real property leases); and 13-106(d) (noncompetitive negotiation). SF §13-107(a) similarly provides that a sole source contract awarded under its provisions requires prior approval by the head of the contracting unit and "any other approval required by law." In marked contrast, SF §13-107(b) contains no such general requirement of approvals "required by law," but only a specific requirement that the contracting unit obtain "the prior written approval of the Attorney General ...." SF §13-107(b)(1).

We think that this difference between the wording of the approval provisions evidences a legislative intent to establish substantively different approval procedures. SF §13-107(b) was enacted as part of a general revision of the Procurement Law that also enacted the other provisions concerning the various procedures for awarding contracts. Chapter 840, Laws of Maryland 1986.2 If the General Assembly had intended to require that contracts awarded under SF §13-107(b) be subject to the same procurement approvals applicable to contracts awarded under the other procedures, presumably it would have used the same general language that it used in those other provisions, indeed, that it used in the other sole source authorization, SF §13- 107(a), within the very same section. This contrasting language indicates that the only approval required for the award of those contracts under SF §13-107(b) is the approval of the Attorney General. See Kaczorowski v. City of Baltimore, 309 Md. 505, 516, 525 A.2d 628 (1987) (statutes must be construed in light of context in which they were enacted, including related statutes).

We think that the different approval requirements of SF §13-107(a) and (b) reflect their different applicability and purpose. SF §13-107(a) is intended to apply to procurement contracts that differ from those entered into under ordinary procedures only in that there is but a single available source. Consequently, no special considerations require that those contracts be subject to a review and approval process different from that applicable to contracts formed under other provisions of the Procurement Law. Accordingly, a sole source contract entered into under SF §13-107(a), like a contract awarded after selection among multiple prospective contractors, requires prior approval by the head of the unit and also "any other approval required by law", unquestionably including the approval of the Board of Public Works or the primary procurement unit with control over procurement of the goods or services that are the contract's subject (here, DBFP).

2
We are not aware of any legislative history that bears on the issue addressed in this opinion.

In contrast, SF §13-107(b) by its terms applies only to contracts that relate to pending or threatened litigation, the acquisition of real property, or collective bargaining. These are all matters that are adversarial in character. Litigation by definition is; property acquisition and collective bargaining, too, call for the close involvement of lawyers, who must view each such matter with at least one eye on the prospect of future litigation. Yet, even for these kinds of matters, a contract will not be subject to SF §13-107(b) unless the nature of the services to be rendered requires confidentiality. SF §13- 107(b) carves out a narrow exception to accommodate the special requirements of the adversary setting. That is, SF §13-107(b), a specific provision governing approval of one small category of sole source contracts for services, is to be given effect over SF §12- 107(b)(2)(ii), a general provision governing approval of a very broad category of service contracts. See Criminal Injuries Compensation Board v. Gould, 273 Md. 486, 495, 331 A.2d 55 (1975).

The public nature of the usual procurement process would breach the confidentiality of the contracts to which SF §13-107(b) applies. For example, procurement by competitive sealed proposals, the usual method of procuring services, requires the publication of a request for proposals that includes a work statement or scope of services statement, a performance schedule, and any special instructions regarding the services to be provided. COMAR 21.05.03.02A. In the context of particular litigation, appraisal of real property for State acquisition, or collective bargaining, such a description of the services that the State needs would tend to reveal the State's legal theory and contemplated action, thereby providing an actual or potential adversary with the important advantage of foreknowledge of the State's position and anticipated strategy.3 Hence, those contracts involve special considerations that make a special review and approval process appropriate.

Moreover, the litigation-related contracts described in SF §13- 107(b)(1)(i) implicate the Attorney General's constitutional responsibility to serve as the lawyer for the State. See State v. Burning Tree Club, Inc., 301 Md. 9, 34, 481 A.2d 785 (1984). When consultants are needed in connection with representation of agencies or officials, the Attorney General, like an attorney representing a private client, must have the ability to select the most able and knowledgeable consultants available. Subjecting to approval by officials other than the

3
We note that SF §13-107(c), requiring public notice of any contract "awarded under this section," applies to contracts covered by SF §13-107(b). However, the public notice can be fashioned to avoid disclosure of privileged information. Cf.
§§10-615(1), 10-618(b) and 10-618(e) of the State Government Article.

Attorney General the determination of whether, when, and for what purpose the assistance of expert witnesses or other consultants is needed and the choice of the consultant who will provide those services in connection with litigation might impinge upon the Attorney General's constitutional duty to exercise ultimate supervision over the conduct of the State's legal business and, in some contexts, might interfere with the Attorney General's prosecutorial discretion. See 67 Opinions of the Attorney General 3 (1982). See also Murphy v. Yates, 276 Md. 475, 492, 348 A.2d 837 (1975) (duties characteristic of a constitutional office may not be transferred by statute to another office). SF §13-107(b) should be construed to avoid this potential constitutional problem. See Yangming Transport v. Revon Products, 311 Md. 496, 509, 536 A.2d 633 (1988).

To be sure, not all State agencies are represented by the Attorney General. See, e.g., §6-102 of the State Government Article. Accordingly, the General Assembly could not have been concerned that requiring those agencies to submit their proposed procurements of expert witnesses to normal procurement approval procedures might impinge upon the Attorney General's constitutional role. Nonetheless, SF §13-107(b) does not distinguish between agencies represented by the Attorney General and those represented by independent counsel. We believe that the General Assembly thus recognized that the retention of consultants in connection with the litigation and other specified activities of those agencies implicates the same concerns that necessitate a special approval process for legal consultants' contracts with agencies that are represented by the Attorney General: the need to maintain confidentiality concerning all aspects of the consultant's employment and the need for the full exercise of counsel's best legal judgment in determining whether to retain a consultant in connection with a particular legal matter and in the choice of the consultant. By requiring that the State's chief legal officer review the contracting unit's determination that the matter to which the contract relates and the nature of the services to be performed warrant the provision's invocation, the General Assembly sought to ensure that SF §13-107(b) will not be applied improperly. Hence, we believe that sole source procurements under SF §13-107(b), whether by an agency that is or by one that is not represented by the Attorney General, are subject to the approval of the Attorney General alone.

IV

Conclusion

In summary, it is our opinion that the award of a contract for expert witness or other consultant services under the "sole source" procurement provisions of SF §13-107(b) requires the approval of the Attorney General only. This conclusion is not a rejection of cooperation. To the contrary, we look forward to working with DBFP to develop orderly procedures for processing contracts within SF §13- 107(b), consistent with the approval authority provided by the General Assembly.

J. Joseph Curran, Jr.
Attorney General

C. J. Messerschmidt
Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice