Selecting Bond Counsel

An essential member of a government issuer’s bond financing team is bond counsel. Bond counsel not only prepares authorizing documents, disclosure documents and assists in compliance with IRS regulations, but also renders an opinion on the validity of the bond offering, the security for the offering, and whether and to what extent interest on the bonds is exempt from income and other taxation. The opinion of bond counsel provides assurance both to issuers and to investors who purchase the bonds that all legal and tax requirements relevant to the matters covered by the opinion are met. An issuer should assure itself that its bond counsel has the necessary expertise to provide an opinion that can be relied on and will be able to assist the issuer in completing the transaction in a timely manner.

Typically, bond counsel will formally represent the issuer rather than the historical practice of representing the “transaction” or the “purchasers” of the bonds. This representation establishes an attorney/client relationship with the issuer and greatly facilitates candid discussions between bond counsel and the issuer which can result in the issuer receiving comprehensive legal counsel not only relating to the proposed bond issue, but with respect to ongoing issues such as continuing disclosure, compliance with debt policies and comprehensive capital planning. The partnership can be valuable well after the debt issuance by taking advantage of professional expertise and specific knowledge of the issuer’s history and upcoming plans and opportunities.

An RFP or RFQ should require firms proposing to serve as bond counsel to submit information that permits the issuer to evaluate the following factors, at a minimum:

• The firm’s experience with financings of the issuer or comparable issuers, and financings of similar size, types, and structures, including financings in the same state.
• In preparing the RFP the issuer should determine whether specialized tax advice beyond normal bond counsel services is required. In those instances, the firm’s experience in tax matters and the attorneys who practice full time in the area of public finance tax law should be identified in detail. If the firm has no attorneys who specialize in public finance tax law, the response should indicate how the firm intends to provide competent tax advice.
• The firm’s experience with a federal securities laws and regulations. In preparing the RFP the issuer should determine whether specialized securities law services beyond normal bond counsel services is required. In those instances, the firm’s experience in municipal securities law matters and the attorneys who practice full time in the area of municipal securities law should be identified in detail. If the firm has no attorneys who specialize in municipal securities tax law, the response should indicate how the firm intends to provide competent municipal securities law advice.
• Knowledge and experience of the attorneys that would be assigned to the transaction, particularly the individual with day-to-day responsibility for the issuer’s account.
• Ability of the firm and assigned personnel to evaluate legal issues, prepare documents, and complete other tasks of a bond transaction in a timely manner.
• Relationships or activities that might present a conflict of interest for the issuer.
• Level of malpractice insurance carried, including the deductible amount, to cover errors and omissions, improper judgments, or negligence.

Issuer staff with experience in public finance and/or responsible for debt management activities should be involved in the RFP or RFQ development and response review. This may include representatives from the finance department and internal counsel. To remove any appearance of a conflict of interest resulting from political contributions or other activities, elected officials should not be part of the evaluation and/or selection team. In reviewing and evaluating the RFP or RFQ responses, evaluation procedures and a systematic rating process should be established which consider the following:

• The use of oral interviews of proposers, in which the attorney who would have day-to-day responsibility for the issuer’s account should be asked to assume the lead role in presenting the qualifications of the firm.
• The selection should not be driven solely by proposed fees. The experience of the firm with the type of transactions and the ability to deliver the required legal services in a timely manner are the most important factors in the selection of bond counsel.
• For issuers that have ongoing needs of a similar nature, continuity should be considered an important factor in the evaluation process.
• Different fee arrangements are possible depending on the type and nature of the engagement. Fee arrangements include both fixed fee and hourly which may or may not include a cap on the total compensation. Additionally, fees may also be paid contingent on the sale of bonds. Generally, bond counsel fees should not be paid on a contingent basis to remove the potential incentive for bond counsel to render legal or tax options that would result in the inappropriate issuance of bonds. However, this may be difficult given the financial constraints of many issuers; in the case of contingent fee arrangements (as well as other fee arrangements), issuers should undertake ongoing due diligence to ensure the bond issue and structure remains appropriate for their organization. Fees and method of compensation (fixed fee, hourly, or retainer) should appropriately reflect the complexity and scope of the services to be provided.
• Before making a final selection, the issuer should check the references furnished by the prospective bond counsel and determine the outcome of examinations by the IRS or other regulatory agencies of transactions in which the prospective bond counsel was involved. Where practical, one individual should check all references using a standard set of questions to promote consistency.
• Diversity of firm members, management and ownership.

The issuer may also choose to include a Form of Contract in the RFP or RFQ package, which incorporates elements and provisions conforming to prevailing law and procurement processes. The RFP or RFQ should require respondents to comment on the acceptability of the Form of Contract. The comments on the acceptability of the Form of Contract should be part of the evaluation process. The contract development process should allow for reasonable negotiation over the final terms of the contract and/or engagement letter. A final negotiated contract or the engagement letter should make clear those services that will be included within the basic bond counsel fee and any services or reimbursable expenses that might be considered separately billable. If co-bond counsels are being engaged, the issuer should:

• delineate in the RFP or RFQ or engagement letter the roles and responsibilities of each firm;
• assign discrete tasks to each firm in order to minimize cost duplication; and
• exercise appropriate oversight to ensure coordination of tasks undertaken by the firms.
• If co-bond counsels are engaged or if bond counsel firms are rotated, the issuer should:
• evaluate whether higher costs for legal services will result because of the need for two or more firms to familiarize themselves with the issuer; and
• consider the possible need to resolve differing viewpoints of each bond counsel.

Throughout the term of the engagement, the performance of bond counsel should be evaluated in relation to the stated scope of services and any areas where service needs to be improved should be communicated to the lead attorney. Ongoing contracts should be reviewed regularly and to the extent that the issuer is not receiving the type of comprehensive legal counsel that it expects from its bond counsel, resubjected to competitive selection periodically.