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37 Procurement Law. 1 (2001-2002)

handle is hein.journals/procurlw37 and id is 1 raw text is: When More Produces Less: California's IT Terms and Conditions Produce Less Competition and Lower Value By RaceRT S. METzGER, DmA G. RicH.AW, AND DAwN FIGUEIRAS Diana G. Richard State agencies are important purchasers of information technology and services. With regularity, state agencies are replacing legacy systems to increase functionality, improve responsiveness, and enhance the overall quality of services being delivered to state users of information technology (IT). The advent of these new, highly sophis- ticated systems promises something of a revolution in both the process and substance by which state govern- ments deliver services to their constituencies. Unfortunately, analysis shows that the laws, rules, sys- tems, and procedures employed by state governments to manage the procurement of such IT services have not always kept pace. Significant initiatives have been taken Robert S. Metzger is a partner in the Los Angeles, California, office of Gibson, Dunn & Crutcher, LLP, chairs the firm's telecommunications practice group, and co-chairs the commercial and government contracts practice group. Diana G. Richard is of counsel in the Washington, DC, office of Gib- son, Dunn & Crutcher, LLP, practicing in the intellectual property and high technology practice groups and specializing in infonnation technology contracting. Dawn Figueiras is an associate in the Washington, DC, office of Gib- son, Dunn & Crutcher LLP, practicing in the corporate transactions group and specializing in general corporate transactions and government and commercial contracts. at the federal level toward acquisition reform in order to use techniques that are more representative of the commercial marketplace in federal government procure- ments; however, these same initiatives have not yet been taken or, at a minimum, have not been consistently applied at the state level. Dawn Figueiras The result is a patchwork of inconsistent procedures and, worse, a continuing pattern of efforts on the part of some state purchasers to demand that IT providers accept terms and conditions that are grossly out of synch with the commercial world. Although these positions have nominally been taken in state procurement to protect the public interest and to obtain best value for lowest price, in fact, it can be shown that such positions injure the public in several ways. First, in a situation where the procurement process is overly (continued on page 20) Robert S. Metzger

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