Learned and other Papers of InterestLearned and other Papers of InterestThe Clause of the Board of Contract Appeals Bar AssociationFederal Contracting and Acquisition: Progress, Challenges, and the Road Ahead by Steven L. Schooner, George Washington University - Law School, Chapter in FRAMING A PUBLIC MANAGEMENT RESEARCH AGENDA, p. 30, IBM Center for the Business of Government, 2010, GWU Legal Studies Research Paper No. 483, GWU Law School Public Law Research Paper No. 483
Abstract:
This brief paper discusses the Obama administration’s public procurement agenda, major trends that influence the acquisition regime (that now encompasses $500B annually), and significant challenges the administration faces in improving the value it receives for the money it spends. It concludes with a group of research questions suggested by participants at the November IBM forum on Framing a Public Management Research Agenda.
Emerging Policy and Practice Issues (2009)
David J. Berteau Center for Strategic and International Studies, Defense-Industrial Initiatives Group, Steven L. Schooner George Washington University - Law School, West Government Contracts Year in Review Conference (Covering 2009), GWU Legal Studies Research Paper No. 491, GWU Law School Public Law Research Paper No. 491
Abstract:
This paper, presented at the West Government Contracts Year in Review Conference (covering 2009), attempts to identify the key trends and issues for 2010 in U.S. federal procurement. In large part, the paper focuses upon the challenges inherited by the Obama administration and its efforts during its first year in office. Among other things, the paper suggests that the administration charted a course of what it perceived as bold action - most dramatically, touting “savings” and accountability, while permitting special interests to distract focus from value for money and customer satisfaction. Accordingly, at least to date, the Obama administration’s procurement policies lack a cohesive theme, suggest a reactive rather than proactive approach, strongly indicate a special interest bias, and, at best, have sent mixed messages at a critical juncture.
Late is Late: Should the GAO Continue to Employ GAO-Created Exceptions to the FAR?
by Major Robert E. Samuelsen II, and
Command Authority over Contractors Serving with or Accompanying the Force,
by Lieutenant Colonel Charles T. Kirchmaier, The Army Lawyer, December 2009.
Federal Contracting and Acquisition: Progress, Challenges, and the Road Ahead, Steven L. Schooner, George Washington University - Law School, Chapter in Framing A Public Management Research Agenda, p. 30, IBM Center for the Business of Government, 2010, GWU Legal Studies Research Paper No. 483, GWU Law School Public Law Research Paper No. 483
Abstract:
This brief paper discusses the Obama administration’s public procurement agenda, major trends that influence the acquisition regime (that now encompasses $500B annually), and significant challenges the administration faces in improving the value it receives for the money it spends. It concludes with a group of research questions suggested by participants at the November IBM forum on Framing a Public Management Research Agenda.
HALLIBURTON HEARS A WHO? POLITICAL QUESTION DOCTRINE DEVELOPMENTS IN THE GLOBAL WAR ON TERROR AND THEIR IMPACT ON GOVERNMENT CONTINGENCY CONTRACTING by MAJOR CHAD C. CARTER, Volume 201 Military Law Review, Fall 2009.
The European Defense Procurement Directive: An American Perspective, Christopher R. Yukins
George Washington University - Law School, The Government Contractor, Vol. 51, No. 41, November 2009, GWU Legal Studies Research Paper No. 480, GWU Law School Public Law Research Paper No. 480
Abstract:
On August 21, the new European directive on defense and security procurement, Directive 2009/81/EC, entered into force. See, e.g.,EU Adopts New Defense and Security Procurement Directive, 6 IGC ¶ 65. Previously, most European defense procurement was considered exempt from the European procurement directives that have harmonized procurement, with greater transparency and competition, across Europe. Under the new defense directive, all but the most sensitive defense and security procurements in Europe will have to be conducted under rules consistent with the new directive.
From an American vantage point, however, it is not yet clear how the new directive will be implemented. If the defense directive merely brings new competition and transparency to the European procurement markets, the directive will be a welcome improvement in what was traditionally a closed and uncompetitive market. But if, in practice, the directive is used as an excuse to discriminate against U.S. exporters - or if it is perceived as a tool of discrimination - the directive threatens to trigger serious trade frictions in the transatlantic defense markets.
Contract Interpretation: What is it About?, David McLauchlan, Victoria University of Wellington - Faculty of Law, October 5, 2009
Abstract:
In recent times contract interpretation has become one of the most contentious areas of the law of contract. There are fundamental divisions among commentators, practitioners and judges (often writing extra-judicially) as to the nature of the task and the permissible aids to interpretation. This article highlights the reasons for these divisions and suggests that the position of those who advocate a liberal approach to the latter issue is sometimes misunderstood. The author argues that there are no convincing reasons of principle, policy or convenience for refusing to receive evidence of prior negotiations and subsequent conduct: in particular, admitting such evidence is not, as commonly thought, inconsistent with the objective approach to interpretation. However, at the same time it is stressed that it will only be in relatively exceptional cases that the evidence will provide a helpful or reliable guide to the true intention of the parties.
The Department of Defenses Use of Private Security Contractors in Iraq and Afghanistan: Background, Analysis, and Options for Congress, Moshe Schwartz
Specialist in Defense Acquisition, Congressional Research Service, September 29, 2009.
From the Introduction: The 111th Congress is grappling with a broad range of issues regarding the use of private security contractors (PSCs) to provide security for people and property in Iraq and Afghanistan. The United States has gradually increased the types of tasks and roles for which it contracts with private companies in military operations. Congress has generally accepted the concept of using unarmed contractors to carry out support functions in military operations, such as providing food and laundry services, although not without concerns regarding the costs of contracts and alleged favoritism in issuing them. But for the Department of Defense (DOD), Iraq and Afghanistan present new challenges. The United States is relying heavily, apparently for the first time during combat or stability operations, on private firms to supply a wide variety of security services. Given the shortage of U.S. troops, PSCs are widely viewed as being vital to U.S. efforts in the region. Many Members are concerned about transparency, accountability, and legal and symbolic issues raised by the use of armed civilians to perform security tasks formerly performed primarily by military personnel, as well as the negative effect that PSCs may be having on U.S. counter-insurgency efforts.
This report discusses the type of work performed by PSCs, why DOD uses PSCs, and the number of armed security contractors working in Iraq and Afghanistan. The report also examines whether the use of PSCs could undermine U.S. efforts in the region.
DOJ OFFICE OF LEGAL COUNSEL,
MEMORANDUM OPINION FOR SARA D. LIPSCOMB GENERAL COUNSEL, SMALL BUSINESS
ADMINISTRATION, August 21, 2009.
Re: Permissibility of Small
Business Administration Regulations Implementing the Historically
Underutilized Business Zone, 8(a) Business Development, and
Service-Disabled Veteran-Owned Small Business Concern Programs
Government Contracting Disputes: Its Not All About the Money,Major Scott E. Hutmacher, The Army Lawyer, August 2009.
From the Intoduction: Money isnt everything. This cliché is not only true in life; it is also true in the world of government contract appeals. Nonmonetary remedies are available and viable alternatives to monetary relief. Parties in the government contracting process, at some time or another, find themselves in a dispute and one party wants a specific type of relief . . . this is disputes 101. The relief sought in most contract disputes is monetary. However, monetary relief does not always make the allegedly wronged party “whole.” Sometimes, what the party seeks is nonmonetary relief.
This article serves as a practical guide to contract litigators. The article first identifies the forums available for disputes in government contracting and the particular authorities creating the forum. The article then outlines the nonmonetary remedies available in those forums. The article goes on to identify and address the limitations of nonmonetary relief available to the forums. Finally, the article provides litigators the ability to understand what contractors may ask for and some instances of what they received.
Less is More: Encouraging Greater Competition in Computer Software Procurement by Simplifying the DFARS Licensing Scheme, C. Peter Dungan, United States Army, March 16, 2009
Abstract:
"Unduly confusing," "daunting," "onerous," and "counter-intuitive" are all terms that describe the Department of Defense's (DoD) regulations regarding intellectual property (IP) rights in computer software. Practitioners and academics have assailed the Defense Federal Acquisition Regulations Supplement (DFARS) provisions regarding IP rights in software as being too difficult for contractors to understand and being too protective of government interests. This confusing maze of regulations has discouraged small, non-traditional companies - the type of companies that generate the groundbreaking technology most sought after by the DoD - from entering the federal marketplace.
This paper examines the current DFARS software IP rights scheme and provides a roadmap for further reform. Part II analyzes the history of software development and the historical regulations governing DoD's procurement of software. Part III examines the current DFARS provisions governing rights in software. Even after two congressionally mandated rewrites, the DFARS retains the protectionist character of Cold War era IP regulations. Part IV examines the viewpoints of the stakeholders in government-procured software. Contractors view intellectual property as the "crown jewel" of corporate assets. Moreover, DoD often does not need the extensive rights that these regulations confer. Finally, Part V suggests a way to encourage non-traditional firms to enter the government marketplace. The current standard licenses for software are are too broad and grant the Government rights that it does not need. Reformed DFARS clauses should confer rights through negotiation and establish, as the maximum the Government can demand, a level of rights equal to the current government purpose rights license. Such a reform would alleviate the fears many companies have that the Government will pawn off their "crown jewels."
The Future Use of Corporate Warriors with the U.S. Armed Forces: Legal, Policy, and Practical Considerations and Concerns , COL David “Dave” A. Wallace, USA
The privatization of warfare has led to many interesting and complex issues. Among the myriad of issues is what role, if any, private security contractors should play in augmenting the U.S. armed forces future force structure. Against this backdrop, the article highlights certain considerations policymakers, military leaders, and force planners should balance when analyzing the future use of private security contractors. To make a proper determination on the future use of private security contractors, decision makers must weigh the benefits associated with the capabilities and characteristics of private security contractors with the costs of using such private actors. In that context, the article addresses several overarching legal policies, practical concerns, and risks associated with their future use.
Offset Contracts under
Defence Procurement Regulations in India:
Evolution, Challenges and Prospects, ©2009, Sandeep Verma. Further use without the permission of author is prohibited. This paper won NCMA’s “The W. Gregor Macfarlan Excellence in Contract Management Research and Writing Program 2008 Award” as best graduate research paper on contract management. This paper represents author’s work-in-progress, and observations and comments for its improvement are solicited.
Abstract The practice of countries demanding discharge of offset obligations as a prerequisite to foreign firms’ participation in major civilian or defence contracts is not new, and recent years in particular have seen a number of countries, both developed and developing, apply offsets and industrial participation measures at an ever-growing scale and complexity, as governments worldwide use their purchasing power to develop local capacities and channelize investments and technology to favored domestic sectors. This paper traces the history of offset regulations in defence procurement in India, together with a legal analysis of this evolutionary path over the last four years. It then identifies challenges and areas of concern in the existing regulatory framework, and comes up with suggestions on the way forward to address the identified areas of concern keeping in view two primary objectives of procurement reform, namely, enhancing efficiency and uniformity in the administration of offset contracts in India.
Contesting Task And Delivery Order Awards At The COFC—Policy Implications Of A Choice Federal Courts May Soon Have To Make, by Sandeep Verma, a senior member of the Indian Administrative Service, 51 Government Contractor No. 20, May 20, 2009. Reprinted from The Government Contractor, with permission of Thomson Reuters. Copyright © 2009. Further use without the permission of West is prohibited. For further information about this publication, please visit www.west.thomson.com/store, or call 800.328.9352.
Suing the Hired Guns: An Analysis of Two Federal
Defenses to Tort Lawsuits Against Military Contractors, Andrew Finkleman, Brooklyn Journal of International Law, VOLUME XXXIV, NUMBER 2, 2009.
From the Introduction As the U.S. military decreased in size following the Cold War, the role of government contractors in combat zones
grew ever larger. The military-contractor phenomenon has mushroomed in recent years, and private contractors now play
pivotal roles in U.S. military and reconstruction operations in Iraq and Afghanistan. The government’s use of contractors
to perform military and foreign affairs-related functions raises a host of political, moral, and legal questions. While the U.S. intervention in Iraq and Afghanistan continues with no apparent end in sight, these questions justifiably
remain at the forefront of the national debate.
This Article addresses a narrow aspect of the nation's use of private contractors in Iraq and Afghanistan. While
the lack of criminal accountability for contractors has received much critical commentary, scholars have paid comparatively
little attention to the possible civil liabilities they face. This Article attempts to shine some light on this topic
by addressing the defenses and immunities that might protect private military contractors from civil liability.
The George Washington University Law School Government Procurement Law Program and the Boards of Contract Appeals Bar Association are pleased to present a special colloquium on: Contractor Compliance: Next Steps in Anti-Corruption, June 09, 2009. Papers from the program.
Why Breach of Contract May Not Be Immoral Given the Incompleteness of Contracts, Steven Shavell, Harvard Law School; National Bureau of Economic Research (NBER), March 1, 2009, Harvard Law and Economics Discussion Paper No. 631
Abstract:
There is a widely held view that breach of contract is immoral. I suggest here that breach may often be seen as moral, once one appreciates that contracts are incompletely detailed agreements and that breach may be committed in problematic contingencies that were not explicitly addressed by the governing contracts. In other words, it is a mistake generally to treat a breach as a violation of a promise that was intended to cover the particular contingency that eventuated.
Modification of a Government Contract Awarded Following a Competitive Procedure, Omer Dekel,
Academic Center of Law and Business, Public Contract Law Journal, Vol. 38, No. 2, 2009
Abstract:
The issue of whether and to what extent a government authority may introduce subsequent changes into a procurement contract signed following a competitive procedure is one of the more practical and problematic questions in the area of procurement law. The article points out the difficulty inherent in this type of change, even if it is made upon mutual consent of the parties.
The article discusses the regulatory regime reached by the courts, under which a later change to a procurement contract is permissible and left to the discretion of the contracting officer (CO). As part of this discretion, the CO can take into account a number of considerations, the main ones being: the extent to which the requested change materially alters the original contract and the extent to which the requested modification could have been anticipated by a reasonable bidder. The article proposes to change this regime on two fronts: first, to adopt a rule by which a change to a contract would be impermissible unless special exceptions exist; second, to allow the CO to take into account a wider variety of considerations in deciding whether or not to permit such change.
Private Military and Security Companies: A Framework for Regulation, by James Cockayne and Emily Speers Mears, March 2009, International Peace Institute.
Cockayne and Speers Mears examine the shortcomings of existing state, industry, intergovernmental, and civil society mechanisms for global security industry regulation, and put forward five possible regulatory frameworks for the global security industry. The report is based on a six-month study of approaches to regulation in other global industries, and extensive consultation with security industry stakeholders. The full, book-length study Beyond Market Forces: Regulating the Global Security Industry, will be published by IPI later in 2009
Playing By The Numbers: Recalculating How Many Employees Equal A Small Business, by Ralph C. Thomas III, February 2009. “SBA’s proposed new standard for determining small business status has been soundly criticized. However, with just a few adjustments, SBA’s new standard can obtain the necessary buy-in of small businesses.”
Rothe Development
Corporation v. Department of Defense: The Constitutionality of Federal
Contracting Programs for Minority-Owned and Other Small Businesses,
by Jody Feder and Kate M. Manuel, March 16, 2009. Congressional Research
Service, Federation of American Scientists web
site.
Summary This report discusses Rothe Development
Corporation v. Department of Defense, a case involving a constitutional
challenge to a minority contracting program authorized under Section
1207 of the Department of Defense (DOD) Authorization Act of 1987. This
program allowed DOD to take 10% off the price of bids or offers
submitted by “small disadvantaged businesses” in determining which bid
or offer had the lowest price or represented the best value for the
government. Section 1207 also incorporated a presumption that minorities
are socially and economically disadvantaged.
In Rothe, the
U.S. Court of Appeals for the Federal Circuit struck down the DOD
preference program, holding that Section 1207 was facially
unconstitutional because Congress did not have sufficient evidence to
conclude that there was racial discrimination in defense contracting
when it reauthorized the program in 2006. This report examines the Rothe
decision in detail; describes existing contracting programs for
minority-owned and women-owned small businesses; and analyzes Rothe’s
potential effect on these programs, including the Business Development
Program under Section 8(a) of the Small Business Act.
International Public Procurement Developments in 2008; Public Procurement in a World Economic Crisis, Robert D. Anderson, World Trade Organization, Christopher R. Yukins, George Washington University - Law School, West Government Contracts Year in Review Conference (Covering 2008), GWU Legal Studies Research Paper No. 458, GWU Law School Public Law Research Paper No. 458
Abstract:
These two papers, presented at the West Government Contracts Year in Review Conference (covering 2008), discuss developing issues in international public procurement. Among other things, the Anderson paper addresses the role of the World Trade Organization in public procurement; other organizations -- such as the World Bank, the UN, and the OECD -- that play increasingly important roles; the role of competition or antitrust policy vis-a-vis procurement; and discrete issues such as public-private partnerships and framework agreements. The Yukins paper addresses, among other things, protectionist pressures that are being applied to the crisis-generated stimulus spending packages. The Yukins paper recommends that the Obama administration should tailor any fiscal stimulus procurements to comply with existing international free-trade agreements, and continue to advocate, quite forcefully, for building capacity and reform in procurement around the world.
Tempering 'Buy American' in the Recovery Act - Steering
Clear of a Trade War, Steven L. Schooner, George Washington
University - Law School, Christopher R. Yukins, George Washington
University - Law School, Government Contractor, Vol. 51, No. 10, 2009, GWU
Legal Studies Research Paper No. 462, GWU Law School Public Law Research
Paper No. 462,
Abstract: The controversial 'Buy American requirements in
Section 1605 of the American Recovery and Reinvestment Act of 2009
threaten to stir protectionism leading to an outright trade war. This
could be catastrophic in the current economic crisis, particularly since
the Obama administration does not appear to believe that additional
domestic preferences are needed for U.S. procurement. The pending
challenge for federal regulators, therefore, will be to craft a rule
that contains the Recovery Act's international impact, while
implementing Congress' intent. The authors suggest that the optimal
approach seems to be the most simple: to fold new procurement under the
Recovery Act into the existing FAR regulatory structure, which
accommodates the U.S.' many trade agreements. This would ensure that
federal agencies' procurements adhere to those trade agreements (and
also increases the likelihood that an already over-taxed acquisition
workforce can consistently apply the new rules.) This simple, quick and
elegant approach would be the least likely to generate new, potentially
disastrous waves of protectionism in the critical, but treacherous,
waters of global commerce.
Emerging Policy and Practice Issues (2008), Steven L.
Schooner George Washington University - Law School, David J. Berteau,
Center for Strategic and International Studies, Defense-Industrial
Initiatives Group, West Government Contracts Year in Review Conference
(Covering 2008), GWU Legal Studies Research Paper No. 459, GWU Law School
Public Law Research Paper No. 459
Abstract: This paper,
presented at the West Government Contracts Year in Review Conference
(covering 2008), attempts to identify the key trends and issues for 2009
in U.S. federal procurement. In large part, the paper focuses upon the
challenges facing the incoming Obama administration, which faces a
number of interrelated, critical, systemic challenges that pervade the
acquisition landscape. Federal procurement spending has exploded in this
decade. As a result - and, in addition to decisions made during the
1990's - the Government is heavily outsourced, dependent upon
contractors to an extent - in degree and in type - that makes many
uncomfortable. To exacerbate matters, the Government lacks a sufficient
acquisition workforce to responsibly manage its cadre of contractors
(including an increasingly blended-military-contractor, civil
servant-contractor, and/or military-civil servant-contractor-workforce).
The failure to plan and staff the acquisition function in Iraq and
Afghanistan, particularly, the ill-conceived and poorly-orchestrated
reliance on arms-bearing (or private security) contractors in the battle
area, will continue to generate bad procurement news and erode
confidence. Thus, the foreseeable future will be dominated by a deeply
ingrained, broad-based anti-contractor sentiment, which will manifest in
the form of initiatives intended to achieve greater (pick your label)
accountability, compliance, corruption control, ethics, integrity,
transparency, etc. All of which signals turbulent times ahead, whether
or not the new administration embarks upon an epochal public works
program that would continue to fuel the breathtaking increases in
procurement spending that have spanned this new century.
Public Procurement: Focus on People, Value for Money and Systemic
Integrity, Not Protectionism, Steven L. Schooner George Washington
University - Law School Christopher R. Yukins George Washington
University - Law School, THE COLLAPSE OF GLOBAL TRADE, MURKY
PROTECTIONISM, AND THE CRISIS: RECOMMENDATIONS FOR THE G20, Chapter 17,
Richard Baldwin and Simon Evenett, eds., A VoxEU.org Publication GWU
Legal Studies Research Paper No. 460 GWU Law School Public Law Research
Paper No. 460
Abstract: The authors assert that, in the
face of severe economic challenges, efficient and effective public
purchasing is critical. Governments should focus on obtaining the
greatest possible value for money expended and minimizing corruption,
while eschewing counter-productive and inefficient protectionist
constraints on procurement regimes. Stimulus investments in
strengthening the acquisition workforce - the officials responsible for
spending the government's money honestly and consistent with sound,
business-based, transparent practices - will pay both short- and
long-term dividends.
IMPOSSIBILITY, IMPRACTICABILITY, AND FRUSTRATION, Melvin A. Eisenberg, The Journal of Legal Analysis, Vol 1, No 1 (2009), Harvard
Abstract:
Three fundamental concepts underlie the principles that should govern unexpected-circumstances cases. (1) A contract consists not only of the writing in which it is partly embodied, but also includes, among other things, certain kinds of tacit assumptions. (2) These assumptions may be either event-centered or magnitude-centered. (3) The problems presented by unexpected-circumstances cases should be viewed in significant part through a remedial lens. The principles that rest on these concepts can be broadly summarized as follows. A shared nonevaluative tacit assumption that a given circumstance will persist, occur, or not occur during the contract time should provide a basis for judicial relief where the assumption would have affected the promisor's obligations had it been made explicit. If the promisor was neither at fault for the occurrence of the unexpected circumstance, nor in control of the conditions that led to the occurrence, she should not be liable for expectation damages. The promisor should, however, be liable for restitutionary damages, because it would be unjust to allow the promisor to both be excused from performance and retain any benefits that she received under the contract. Alternatively, the promisor should be liable for reliance damages where she is at fault for the creation of the unexpected circumstance, but the fault is minor; where the promisor is in control of the conditions that led to the occurrence of the unexpected circumstances; or where an objective of the contract was to reserve for the promisor the promisee's time, labor, or productive capacity. A seller should also be entitled to judicial relief if as a result of a dramatic and unexpected rise in her costs, performance would result in a financial loss that is significantly greater than the risk of loss that the parties would reasonably have expected that the seller had undertaken. If, under such circumstances, the market value of the contracted-for commodity has risen in tandem with the seller's costs, the buyer should be entitled to the profit he would have made if a reasonably foreseeable increase in the seller's cost of performance, and a corresponding increase in the market value of the commodity, had occurred. In appropriate cases, courts should take into account gains and losses to both parties that proximately resulted from, or were made possible by, the occurrence of the unexpected circumstance.
ADAPTING U.C.C. § 2-615 EXCUSE FOR CIVILIAN-MILITARY
CONTRACTORS IN WARTIME, Jennifer S. Martin, Florida Law Review, January 2009, Vol. 61 No. 1
Abstract: When should a civilian seller of goods who delays delivery or cancels
altogether under a wartime contract be able to claim excuse under U.C.C.
Article 2? The unprecedented extent of the U.S. military’s use of
contractors abroad calls for a rethinking of U.C.C. impracticability, as
private parties face wartime risks once encountered solely by the
government. The traditional approach typically denies the seller the right
to excuse the failure of delivery in instances where the wartime risk might
be categorized as foreseeable or is expressly or impliedly allocated to the
seller. This analysis forces a dilemma upon the seller facing threats of
serious injury or death. At the same time, the civilian seller typically does
not enjoy the same privileges regarding use of force that government
provisioners once exercised. This Article proposes a new paradigm-one
that would hold sellers to deliver goods in most circumstances, but would
make excuse available to sellers through an analysis of functions that are
inherently governmental. This analysis grants excuse where the risks
associated with wartime contingencies requiring a military response are
inherently governmental and, therefore, remain with the government. The
rationale balances the interests of civilians performing wartime contracts
and the military’s need for goods and control of the wartime theater that
would warrant excusing contractors during wartime from performance in
cases of extreme hazard to a contractor’s employees.
Street FOIA 101: Nuts,
Bolts, and Loose Change, Lieutenant Colonel Craig E. Merutka, The
Army Lawyer, December 2008
Introduction This article is
written for members of the “street FOIA Teams” at various
levels. It provides up to date information on recent changes and some
practical nuts and bolts information on a number of FOIA topics. The
issues raised are those that have impact at the installation and lower
level, those that have been the subject of inquiry here at the Judge
Advocate General’s Legal Center and School, or are details the
author did not necessarily know about when he was practicing out on the
street but wishes he did.
The New Text of the Agreement on Government Procurement: An Analysis and Assessment, Arie Reich, Bar-Ilan University - Faculty of Law, January 12, 2009
Abstract:
This article describes and analyzes the new, tentatively agreed text of the WTO Agreement on Government Procurement. It compares it to the existing agreement of 1995, offers interpretation of its provisions and discusses its potential implications for the regulation of international government purchasing. The objective of the article is to examine whether it has indeed delivered on its promise, namely to improve the existing agreement and to eliminate any remaining discriminatory measures and practices. To that aim it presents the critique that has been leveled against the provisions of the existing GPA and examines to what extent the flaws detected by this critique have been rectified in the new text. The paper concludes with a scorecard of the new text assessing its allover strengths and weaknesses.
Training the Military to Manage Contractors During Expeditionary Operations: Overview and Options for Congress, Moshe Schwartz, Congressional Research Service, December 17 , 2008.
SUMMARY: The Department of Defense (DOD) is responsible for performing a wide range of expeditionary missions, including domestic emergency operations and military operations outside of the continental United States. DOD increasingly relies on contractors during expeditionary operations to perform a wide range of services. For example, more contractors are working for DOD in Iraq and Afghanistan than are U.S. military personnel. As a result, military personnel in the field are increasingly interacting with and responsible for managing contractors. Yet many observers argue that the military is not sufficiently prepared to manage contractors during expeditionary missions. The National Defense Authorization Act of FY2008 (H.R. 4986/P.L. 110-181) required DOD, and especially the Army, to train military personnel who are outside the acquisition workforce but are expected to have acquisition responsibility , and to incorporate contractors and contract operations into mission exercises.
DOD, including the Army, are taking a number of steps to comply with Congressional legislation to better prepare the operational force—including servicemen and women conducting military operations on the battlefield—to work with contractors. These steps include developing doctrine for integrating contract support into expeditionary operations, introducing courses on contract support into the curriculum for non-acquisition personnel, and incorporating contract operations into mission readiness exercises. This report examines these steps being taken by DOD and options for Congress to monitor DOD’s efforts to comply with P.L. 110-181. Options include requiring military departments to report on acquisition education courses available for operational personnel. This report will be updated as events warrant.
“The Hidden Costs of Contracting: Private Law, Commercial
Imperatives and the Privatized Military Industry” Paper,
International Security Program, Belfer Center for Science and
international Affairs December 2008, Author: Rebecca Ulam Weiner, Former
Research Fellow, International Security Program, 2005-2007
From the paper: On September 16, 2007, a group of contractors working for the firm Blackwater USA engaged in a chaotic and bloody firefight in Baghdad's Nisoour Square that left 17 Iraqi civilians dead, Blackwater's $500 million in government contracts in jeopardy and the future of the privatized security industry in question. What exactly happened in Nisoour Square remains in dispute. Blackwater alleges that its contractors came under small arms fire and lawfully engaged to stop the threat. The Iraqi government and the US military both argue that Blackwater opened fire unprovoked and used excessive force - including machine guns, grenade launchers and helicopter fire. The FBI, which is conducting a formal investigation into the shootings on behalf of the Department of Justice, argues that 14 of the 17 deaths were unjustified killings and finds no evidence, thus far, that Blackwater was justified in shooting at civilians.
The Nisoour Square incident was broadly proclaimed to be the final straw that would force the White House, Congress and the courts to come to terms with the complex and often fraught relationship between the U.S. military and the increasingly ubiquitous, increasingly interoperable private military contractors that it hires. The FBI investigation marks the first time since the end of the Cold War that the US government is attempting to hold a private security company criminally liable for extraterritorial crimes committed in the course of a government contract.
However, while the episode has subjected the privatized military industry to heightened scrutiny from the Iraqi government, the US military, Congress, and the public, the Department of State and the Department of Justice contend that despite recent efforts to the close the legal loopholes through which private military contractors have slipped in the past, there remain considerable, perhaps insurmountable, hurdles to prosecution.
“Contractor Compliance: New Rules in a Global Market”, Materials from the December 10, 2008, GWU law School special colloquium.
How to Reduce Corruption in Public Procurement: The Fundamentals, Juanita Olaya, Transparency International; University of Bonn - Faculty of Law & Economics, Michael Wiehen, Transparency International
HANDBOOK FOR CUBING(sic) CORRUPTION IN PUBLIC PROCUREMENT, PART I, pp. 13-105, Transparency International, 2006
Abstract:
Procurement of goods, works and other services by public bodies alone amounts on average to between 15% and 30% of Gross Domestic Product (GDP), in some countries even more. Few activities create greater temptations or offer more opportunities for corruption than public sector procurement. Damage from corruption is estimated at normally between 10% and 25%, and in some cases as high as 40 to 50%, of the contract value.
Public procurement procedures often are complex. Transparency of the processes is limited, and manipulation is hard to detect. Few people becoming aware of corruption complain publicly, since it is not their own, but government money, which is being wasted.
This document is Part I of the Handbook for Curbing Corruption in Public Procurement published by Transparency International in 2006 and its purpose is to provide an overview of the problem of corruption in public contracting. Sections 2 and 3 of the Handbook, written by other authors, offer suggestions and experiences of how this problem can be addressed. The full text of the Handbook has been made available.
Essay—After Blackwater: A Mission-Focused Jurisdictional Regime for Private Military Contractors During Contingency Operations, by Michael Hurst, GWU Law Review, VOLUME 76 NUMBER 5 AUGUST 2008.
Why Contractor Fatalities Matter, Steven L. Schooner,
George Washington University - Law School, Parameters, Volume 38, No. 3, Page 78 (Autumn 2008)
Abstract:
At the end of July 2008, the media reported that 4,600 service members have died in Operations Iraqi Freedom and Enduring Freedom. But reporting only military fatalities understates the human cost of America's engagements in these regions by nearly a fourth. On the modern, outsourced battlefield, the U.S. government increasingly has delegated to the private sector the responsibility to stand in harm's way and, if required, die for America. As of 30 June 2008, more than 1,350 civilian contractor personnel had died in Iraq and Afghanistan, while another 29,000 contractors have been injured; more than 8,300 seriously. Nonetheless, contractor fatalities (and injuries) remain generally outside the public's consciousness. This article asserts that, in a representative democracy, public awareness of the human cost of our nation's security and foreign policies is critical.
After the Battle of the Forms: Commercial Contracting in the Electronic Age, Francis Joseph Mootz III
William S. Boyd School of Law, UNLV, I/S: A Journal of Law and Policy for the Information Society, Vol. 4, p. 271, 2008 , UNLV William S. Boyd School of Law Legal Studies Research Paper No. 08-33
Abstract:
This is a substantially expanded and revised version of a paper posted earlier, which will appear in the peer-review journal, I/S: A Journal of law and Policy for the Information Society.
Commercial parties continue to fight the battle of the forms, but electronic contracting is quickly rendering this practice obsolete. In this article I assess the legal landscape for commercial parties after the battle of the forms. In Part One, I briefly describe the (relatively) settled law under U.C.C. 2-207, describe how these rules permit commercial parties to erect a force-field to protect themselves from being subjected to unwanted terms, describe the developments in web-based contracting and recent case law applying contract formation principles to electronic contracting, and then discuss how the growth of electronic contracting will eliminate the battle of the forms that triggers the application of U.C.C. 2-207 and also will make it difficult for commercial parties to replicate the force-field protection to which they have grown accustomed.
In Part Two, I discuss the two primary doctrinal options available to address contracting realities for commercial parties once the electronic age of contracting has eliminated the battle of the forms. The debacle surrounding Revised Article 2 suggests that the only plausible response as the theater of operations shifts from the battle of the forms to the world of electronic contracting will be judicial rather than legislative. Although unconscionability analysis might be a plausible doctrine to address egregious cases, I conclude that the doctrine is too closely aligned with consumer protection to make it a viable theory for commercial parties. Instead, I argue that rehabilitating the doctrine of reasonable expectations holds the most promise for addressing the commercial contracting world after the battle of the forms. This approach enjoys the benefit of being grounded in Karl Llewellyn's theory of the validity of standard form contracts, is consonant with one of the important guiding principles of Article 2, and will be sufficiently defined by the commercial context to permit consistent application by courts policing the margins of acceptable contracting practices.
All papers presented at the 3rd International Public Procurement Conference have been posted on the IPPC website (www.ippa.ws under “Publications”).
The
Legal Challenges of Implementing Electronic Transactions, Thomas J. Smedinghoff Wildman Harrold, Uniform Commercial Code Law Journal, Vol. 41, No. 3, 2008
Abstract:
This article analyzes the law governing electronic transactions, and the legal requirements for creating enforceable electronic transactions of any type. It focuses on the fundamental issues that must be addressed by any business seeking to ensure that the processes it uses for its electronic transactions are legally valid and enforceable. To do so, the article examines the law with respect to the following three general questions:
* Authorization-Can this transaction be done in electronic form? Does existing law in the relevant jurisdictions allow the parties to conduct the proposed transaction in electronic form, or does existing law either prohibit doing the transaction electronically or present legal barriers that make its enforceability uncertain?
* Electronic Requirements-What are the electronic-specific rules? What electronic-specific rules apply, and what requirements must be satisfied to ensure that the transaction is legally valid and enforceable? The focus here is on electronic procedural requirements applicable to all transactions, not on the substantive legal requirements for a particular transaction.
* Security-Is the transaction trustworthy? What is required before the parties will be comfortable relying on the transaction? How can the parties be sure who sent an electronic message or who signed an electronic record? How can the parties be sure that the record has not been altered since it was created? Are the electronic records sufficiently trustworthy such that it will be enforced by a court?
Trade and Competition Policy in the Developing World: Is There a
Role for the WTO?, Daniel J. Gifford University of Minnesota - Law School, Robert T. Kudrle University of Minnesota, Twin Cities, August 13, 2008, Minnesota Legal Studies Research Paper No. 08-27
Abstract:
This paper considers the possibilities that the member states of the WTO would adopt some kind of antitrust provision. Initially, the paper reviews the historical relation of competition policy to trade policy, from the Havana Conference to the present. It then reviews the conflicts between the developing and developed countries in the GATT. The paper explores the differences between the mind-set of legislators adopting a competition law and trade negotiators bargaining for a multilateral reduction in tariffs. It also identifies the influence of private interests in both situations. The paper considers competing roles played by competition laws and industrial policy, especially (but not exclusively) in developing countries. It identifies the differing benefits that developed and developing countries once perceived in a competition-law component to the WTO, and it discusses how the realization of both sets of goals is proving increasingly difficult. Finally, the paper shows that the dominant private interests of developed and developing countries diverge. As a result a global competition-law regime, whether under the WTO or not has become increasingly unlikely.
The Last Shall Be First:
The Use Of Localized Socio-Economic Policies In Contingency Contracting
Operations, Major Bradley A. Cleveland, Military Law Review - Volume
197 - Fall 2008.
From the Introduction This article
critically examines the Federal Acquisition Regulation’s
competition rules and the Competition in Contracting Act (CICA),
including the act’s legislative history. Next, the article will
discuss the current rebuilding efforts in Afghanistan and Iraq and
compare them to the United States’ rebuilding efforts in post
World War II Europe. The article will then explore the history, goals,
application, and impacts of the Afghan First and Iraqi First programs
and explain why the programs violated the full and open competition
requirement. The article will then discuss why, despite their
shortcomings, the programs are vitally important to the United
States’ efforts in the regions of Afghanistan and Iraq. Finally,
the article will explain why congressionally authorized ”enhanced
contingency contracting authority” is vitally important for both
today’s contingency efforts and those that may arise in the future.
ABA SIL International Procurement Committee Year in Review
2007, Paul Lalonde affiliation not provided to SSRN. Christopher R.
Yukins George Washington University - Law School, Don Wallace Jr.,
Georgetown University - Law Center, Jason Matechak, Reed Smith LLP,
International Lawyer, Vol. 42, No. 2, Summer 2008 GWU Legal Studies
Research Paper No. 439 GWU Law School Public Law Research Paper No. 439
Abstract: This year, the International Procurement
Committee's YIR contribution is divided into two sections. Section I
reports on the important work being carried out on, among other things,
framework contracting and electronic procurement by Working Group I of
the United Nations Commission on International Trade Law (UNCITRAL).
Section II deals with the World Bank's continued campaign to eliminate
corruption in procurement through reform of the Bank's sanctions
process, which complements its Voluntary Disclosure Program.
Drowning in Blackwater:
How Weak Accountability over Private Security Contractors Significantly
Undermines Counterinsurgency Efforts, Major Jeffrey S. Thurnher, The
Army Lawyer, July 2008.
From the Introduction- Drastic
measures need to be taken to improve the overall United States policy
for controlling PSCs and holding those contractors accountable for their
actions. Part II of this article provides an overview of the history of
PSCs on the battlefield and explains how the United States got itself
into such a precarious position in Iraq. Part III addresses the law of
war implications of using PSCs while comparing the methods and
approaches of the various governmental agencies who hired PSCs in Iraq
before the September 2007 Blackwater incident. Part IV examines in depth
the changes made in the wake of the Blackwater incident to better
control PSCs. Finally, Part V proposes the additional accountability
measures over PSCs necessary to ensure American success in future
counterinsurgency campaigns.
The Service-Disabled
Veteran-Owned Small Business in the Federal Marketplace, Lieutenant
Commander Theron R. Korsak, The Army Lawyer, July 2008.
From the
Introduction- This article will introduce agency heads, contracting
officers, Judge Advocates, and veterans to the laws and programs
designed to assist service-disabled veteran-owned small businesses in
federal contracting. To accomplish this goal, the first section of this
article presents a summary of the laws intended to assist
service-disabled veteran-owned small businesses. Following that
discussion, section two focuses on socio-economic programs and
eligibility requirements. Section three is a review of common procedural
issues affecting service-disabled veteran-owned businesses. Section four
explores policy conflicts that may impact contract awards to a
service-disabled veteran-owned small business. Section five summarizes
the role that federal agencies, quasi-government organizations, and
industries play to meet the 3% goal. Finally, this article concludes
with recommendations to increase contract awards to service-disabled
veteran-owned small businesses.
Too Dependent on Contractors? Minimum Standards for
Responsible Governance Steven L. Schooner, George Washington, University - Law School, Daniel S. Greenspahn affiliation not provided to SSRN, Journal of Contract Management, Summer 2008 GWU Law School Public Law
Research Paper No. 435, GWU Legal Studies Research Paper No. 435.
Abstract: While acknowledging that there are many benefits,
challenges, and risks involved in outsourcing, this article asserts that failed implementation, rather than outsourcing policy, explains the government's current (mis)management of its contractors. This article explores the minimum standards for responsible governance following more than 15 years of ill-conceived and inadequate investment in the federal government's acquisition workforce, followed by a governmentwide failure to respond to a dramatic increase in procurement activity. These trends have led to a buying and contract management regime animated by triage, with insufficient resources available for contract administration, management, and oversight. The old adage “an ounce of prevention is worth a pound of cure” rings true. Accordingly, a prospective investment in upgrading the number, skills, incentives, and morale of government purchasing officials would reap huge long-term dividends for the taxpayers.
MAXIMIZING TERMINATION FOR CONVENIENCE SETTLEMENTS/EDITION II, Part I and Part II (first pages). by By Paul J. Seidman and David J. Seidman. Thomson West recently published Part II of the Termination Briefing Paper. The papers are coauthored by the father and son Paul and David. Paul states that to the best of his knowledge it is the first father son Government contracts publication.
An interesting side note is that Carl Vacketta taught Paul in his Government Contracts class at Georgetown Law in 1973 and recently taught David at GWU Law.
Both Briefing Papers are available form Thomson West.
Policy & Legal Frameworks for Opening the Chinese Procurement Markets, Christopher R. Yukins.
George Washington University - Law School,
Robert D. Anderson,
World Trade Organization, West Government Contracts Year in Review Conference - Covering 2007, GWU Law School Public Law Research Paper No. 407
Abstract:
These papers, presented at the West Government Contracts Year in Review Conference (covering 2007), discuss the policy and legal frameworks for opening the Chinese procurement markets. The first paper discusses the process for accession to the World Trade Organization (WTO) Agreement on Government Procurement (GPA) and explores some related issues and developments. The author concludes that China’s initiation of its GPA accession process may mark a watershed in the evolution of international regulation of public procurement markets. The latter paper focuses upon challenge mechanisms or bid protests in the context of the WTO GPA. While China's membership in the GPA will open the U.S. procurement market to China, Professor Yukins suggests that what will likely remained unresolved is how vendors offering goods from China will enforce the GPA's market-opening provision in the U.S. federal procurement system.
Public Procurement Systems: Unpacking Stakeholder Aspirations and Expectations, Steven L. Schooner George Washington University - Law School, Daniel I. Gordon Government Accountability Office Washington, D.C.; The George Washington University Law School. Jessica Clark George Washington University - Law School, May 8, 2008, GWU Law School Public Law Research Paper . GWU Legal Studies Research Paper
| This project is very much a work in progress, and we posted the draft at this point because are actively seeking comments, reactions, suggestions, examples, and anecdotes. (The version posted is a significantly condensed version.)
Readers should not hesitate to correspond directly with Steve Schooner at sschooner@law.gwu.edu or, of course, with the other authors. |
Feature Comment: U.S. Contractor Compliance Rules are Likely to Expand, Christopher R. Yukins, George Washington University - Law School, Government Contractor, Vol. 50, para. 147, April 23, 2008,
Abstract:
In response to recommendations and developments in the U.S. procurement community, the U.S. Government is expected soon to issue revised standards for contractor compliance systems. Those standards will likely require more contractors - including contractors working abroad, and perhaps commercial-item contractors - to establish more comprehensive compliance systems to ensure their adherence to the many laws and rules that govern federal procurement. In this brief essay, Christopher Yukins reviews the history of contractor compliance systems, assesses the likely elements of the revised standards, and suggests ways to weigh some of the costs and benefits of new compliance requirements.
Deregulating Defense Acquisition,
Fred Thompson, Willamette University - Atkinson Graduate School of Management, Political Science Quarterly, Vol. 107, No. 4, pp. 727-750, 1993
Abstract:
What we really need is a careful program of experimentation to determine how acquisition life-cycle costs vary with alternative acquisition-process designs and whether short lines of communication, clear responsibility, accelerated schedules, and a modicum of congressional neglect will produce the benefits touted by the experts. Not only is this information needed by program managers, it is also needed to help persuade Congress to back away from its direct supervision of the systems acquisition process, something that neither theory nor hearsay can accomplish.
Emerging Policy and Practice Issues, Steven L. Schooner and Danielle Conway-Jones, George Washington University - Law School,
West Government Contracts Year in Review Conference - Covering 2007
Abstract:
This paper, presented at the West Government Contracts Year in Review Conference (covering 2007), attempts to identify the key trends and issues for 2008 in U.S. federal procurement. We bemoan the absence of attention to significant issues by the current Presidential candidates, critique the leadership vacuum that sustains the longstanding and increasingly critical acquisition workforce shortage, and discuss the potentially active legislative agenda in light of the now-Final Report of the Acquisition Advisory Panel (AAP), a blue-ribbon commission mandated by Section 1423 of the Services Acquisition Reform Act (SARA). We also discuss the dramatic post-2000 trend in increased federal procurement spending, increased transparency due to the Federal Procurement Data System and new online vehicles, increased attention to contractor compliance systems, continuing problems with contracting in Iraq, and the application of certain social policies to the procurement process.
Political Connections and the Allocation of Procurement Contracts - Eitan Goldman, Indiana University Bloomington - Department Of Finance, Jorg Rocholl, ESMT European School Of Management And Technology, Jongil So, University Of North Carolina At Chapel Hill - Finance Area, August 2007, EFA 2007 Ljubljana Meetings
Abstract:
This paper analyzes whether political connections of public corporations in the United States affect the allocation of government procurement contracts. The paper classifies the political affiliation of S&P 500 companies using hand-collected data that detail the past political position of each of their board members. Using this classification, the study focuses on the change in control of both House and Senate following the 1994 midterm election and on the change in the Presidency following the 2000 election. An analysis of the change in the value of the procurement contracts awarded to these companies before and after 1994 and 2000, respectively, indicates that companies that are connected to the winning (losing) party are significantly more likely to experience an increase (decrease) in procurement contracts. The results remain significant after controlling for industry classifications as well as for several firm characteristics. In total, these findings suggest that the allocation of procurement contracts is influenced, at least in part, by political connections. Thus, our study provides one of the first pieces of evidence showing a direct avenue through which political connections add value to U.S. companies.
A CRITICAL REASSESSMENT OF THE GAO BID-PROTEST MECHANISM by
Robert S. Metzger and Daniel A. Lyons, January 26,2008. Wisconsin Law
Review, Volume 2007, Issue 6.
From the Introduction This
Article focuses on the relationship between the COFC and the GAO and
questions whether the GAO should continue to serve as the forum of
choice for complex and high-value procurement-award controversies. As a
corollary, this Article suggests that decisions of the GAO need not
receive the deference that agencies have historically afforded them. The
Article recognizes that the GAO bid-protest mechanism succeeds in
resolving thousands of government-contracts disputes each year. This
convenience and efficiency, however, is not without cost, as the GAO
operates without many of the safeguards of traditional judicial process.
The GAO owes its record of deference not necessarily to the quality of
its decisions but also to its relationship with Congress. In contrast,
the COFC has developed as a judicial forum with specialized
procurement-law expertise. It has procedural strengths that contrast
favorably with the GAO’s more informal adjudicative mechanism.
These and other considerations suggest that federal agencies (and the
COFC) reconsider the deference they traditionally pay to GAO bid-protest
decisions. Moreover, as informed by a close examination of the GAO
process, this Article’s view is that the GAO should consider
changes to its bid-protest regulations to improve the efficacy of the
Comptroller General’s decisions while maintaining the efficiency
of the GAO bid-protest process.
Privatization of State Administrative Services
Drury D. Stevenson , South Texas College of Law, Louisiana Law Review, Forthcoming
Abstract:
Privatization of government services has been touted as a cost-savings approach for state agencies, promising to harness the efficiencies of market forces to overcome the perceived inefficiencies of bureaucracies. Empirical and anecdotal evidence indicates that such savings rarely materialize, and instead outsourcing is often a bad deal for taxpayers. This paper explores the inherent problems in the contractual arrangements for these attempts at government outsourcing. Perverse incentives, transaction costs, non-competitive bidding, the nature of government services handled on the state level, and conflicting legal rules regarding interpretation all contribute to the failure of privatization for the states.
Good
Faith and Contract Interpretation: A Law and Economics Perspective,
Simone M Sepe, Yale Law School; University of Siena, February 2006.
SIena Memos and Papers in Law & Economics - SIMPLE Paper No. 42/06
Abstract:
The widespread acknowledgement of the implied contractual obligation of good faith is a relatively recent phenomenon in the American legal landscape. In the paper, I claim that the obligation of good faith in a contract should be a default rule that parties should include in their agreement only when it maximizes the ex-ante value of their contractual relationship. I discuss under what conditions the requirement of good faith proves efficient and propose a basic framework of reference for the parties' decision to include or exclude good faith in their contract. In this framework, the obligation of good faith is conceived as the rule of law that prohibits each contracting party from taking advantage of the contract's incompleteness to expropriate her counterparty's expected contractual benefits. However, I challenge the law-and-economics argument supporting the efficiency of good faith, claiming that parties themselves should decide whether to include or exclude good faith in their agreements. From a practical viewpoint, this means that the interpretative regime should be determined by private autonomy, rather than be a judicial decision based on a-priori assumptions.
In the good-faith regime I propose, therefore, parties are free to choose whether (i) to exclude good faith from their contracts and, thereby, opt for a literal interpretative regime in which the contract is the only evidentiary base courts should use in enforcing their agreement; or (ii) to include good faith and opt for a good-faith interpretative regime, giving courts indications on the evidentiary base that should be used to
Responding to National
Disasters and Emergencies: A Contract and Fiscal Law Primer Major
Christopher B. Walters, The Army Lawyer - October 2007.
From
the Introduction: Since the beginning of our Nation,
the U.S. military has been called upon to respond to all manner of
domestic disasters and emergencies. Such disasters, natural and
man-made, have included hurricanes, typhoons, fires, floods,
earthquakes, tornados, massive explosions, and terrorist attacks. Other
types of domestic disasters and national emergencies that may require
military deployment and support include disease pandemics, major power
blackouts, nuclear, biological, or chemical releases, and civil
disturbances and insurrections, to name a few. As in all legal areas,
including the fiscal and contracting realm, judge advocates deploying in
support of a domestic disaster or emergency must be keenly aware of the
types of support the military will be asked to provide and the legal
factors that will affect the response. Despite the severity or
catastrophic nature of a disaster, military support to civilian
authorities must always remain within the fiscal and contracting laws
and regulations that govern such assistance. While there are emergency
acquisition rules to add flexibility in these situations, fiscal and
contracting rules remain in effect as in all other military operations.
Proactive coordination and close cooperation by judge advocates with all
fiscal and contracting offices involved in the mission will ensure that
standard procedures and rules are followed and that military funds and
resources are not misapplied.
The purpose of
this primer is to provide the judge advocate deploying in support of a
domestic disaster or emergency a quick overview of the federal response
scheme, highlight some lessons learned and unusual issues that arose in
the past, and identify a recent addition to the Federal Acquisition
Regulation (FAR) resulting from Hurricane Katrina. Note that a detailed
discussion of government fiscal and contracting law procedures and
regulations is beyond the scope of this primer. Judge advocates should
closely review applicable references.
Ipse Dixit: The Restatement (Second) of Contracts and the Modern Development of Contract Law, Gregory E. Maggs, George Washington University Law School, George
Washington Law Review, Vol. 66, No. 508, 1998 GWU Legal Studies Research
Paper No. 387, GWU Law School Public Law Research Paper No. 387
Abstract:
This article considers how courts have responded to the inclusion of six innovative rules in the Restatement (Second) of the Law of Contracts. It observes that most courts simply have deferred to the new rules. In the vast majority of cases, courts gave no reasons for their decisions to embrace the six rules. They simply cited them as they would cite a statute or code and did not question their authority. This practice raises an important normative question: Should courts follow the Restatement (Second) as readily as they currently do? The article concludes that, although some arguments counsel against deference to an academic work such as the Restatement (Second), on balance, the practice does more good than harm. By deferring to the Restatement (Second), courts have tended to promote uniformity and certainty in the law of contracts and to conserve judicial resources. Although deference to the Restatement (Second) may alter the substance of the law in some jurisdictions, such changes generally do not have deleterious consequences.
Reframing The
Defense Outsourcing Debate: Merging Government Oversight With Industry
Partnership, Patrick Cullen Peter Ezra Weinberger Peace Operations Institute
(Published with permission of the author)
Executive Summary(partial)
This report shifts the discussion of the government’s role in defense
contract oversight away from an exclusive focus on guarding against contractor
malpractice—an important issue that has nevertheless been exaggerated in
the media—towards an understanding of contract oversight as a process of
government-industry partnership. Here, contract oversight is understood in terms
of specific technical problems that can be resolved or ameliorated by proactive
cooperation between government and industry partners. In addition to, and in
accordance with this pragmatic vision of government oversight, the report seeks
to achieve the following:
Book Review: Outsourcing Sovereignty: Why Privatization Threatens Democracy, Richard J. Pierce Jr., George Washington University Law School, George Washington Law Review, Forthcoming, GWU Legal Studies Research Paper No. 360, GWU Law School Public Law Research Paper No. 360
Abstract:
This is a review of Paul Verkuil's new book: Outsourcing Sovereignty: Why Privatization Threatens Democracy and What we Can Do About It. The book consists of a wide-ranging and well-documented critique of what Verkuil views as excessive reliance on private contractors to perform a variety of inherently governmental tasks, with particular emphasis on military and other national security functions. Verkuil discusses in detail numerous ways in which the U.S. might reduce the scope and severity of the severe problems that excessive reliance on poorly-supervised contractors is now having.
Pierce praises Verkuil's description and documentation of the problem he addresses in the book, but he expresses skepticism with respect to the likely efficacy of the remedies Verkuil discusses. Pierce proposes two other remedies that he believes would at least enhance the efficacy of the remedies Verkuil proposes - election of a President with better judgment than George W. Bush and congressional refusal to immunize private contractors from potential civil and criminal liability. Pierce also suggests, however, that downsizing and outsourcing military functions has had an important beneficial effect - it has limited the ability of the U.S. to invade and to occupy countries that displease the U.S., thereby reducing to two the five or six countries the U.S. might have attempted to invade and to occupy if it had a more robust military capability.
The Effect of
Information on the Bidding and Survival of Entrants in Procurement Auctions, Dakshina G. De Silva, Texas Tech University - Department Of Economics, Georgia
Kosmopoulou, University Of Oklahoma - Department Of Economics, Carlos Lamarche
Department of Economics,June 8, 2007.
Abstract:
In government procurement auctions of construction contracts, entrants are typically less informed and bid more aggressively than incumbent firms. This bidding behavior makes them more susceptible to losses affecting their prospect of survival. In April of 2000, the Oklahoma Department of Transportation started releasing the internal cost estimates to complete highway construction projects. Using newly developed quantile regression approaches, this paper examines the impact of the policy change on aggressive entrants. First, we find that the information release eliminates the bidding differential between entrants and incumbents attributed to informational asymmetries. Second, we argue that the policy change affects the prospects of survival of entrants in the market. We find that those who used to exit the market relatively soon are now staying 37 percent longer, while at the median level bidding duration increased by roughly 68 percent. The policy has the potential to encourage entry in government procurement auctions and thus increase competition.
Contracting
for Wartime Actors: The Limits of the Contract Paradigm. Jennifer S. Martin, University of Pittsburgh School of Law, August 26, 2007.
Abstract:
Much can be (and has been) said about the war in Iraq. This essay explores the role of contract in wartime and (particularly) reconstruction. First, it considers the use of government contracts to privatize numerous government functions during the reconstruction and conflict in Iraq. Second, it considers the private ordering by contract done by government contractors to obtain security and related services from third parties. Both types of contracting raise complicated issues including: the proper use of force; to what extent the contracts should have government oversight; to what extent contractors should be accountable for crimes; and whether contractors qualify as noncombatants in case of capture. The special issues of contracting in a warzone are not best addressed primarily by common law doctrine. Additional rules and regulations are necessary to address the special issues of non-state actors who contract with the U.S. government.
Literacy And
Contract, Alan M. White, Valparaiso University School Of Law, Cathy Mansfield, Stanford Law & Policy Review, Vol. 13, No. 2, 2002
Abstract:
Contract law imposes on consumers a “duty to read”, shorthand for a set of related doctrines including the statute of frauds, the parol evidence rule, and the reasonable reliance element of fraud as a contractual excuse. Moreover, consumer protection statutes have placed heavy emphasis on information disclosure, usually provided on additional documents, as the preferred method to deter abuses in the marketplace. The duty to read and the myriad of disclosure laws rely on unfounded assumptions about the ability of ordinary consumers to read and use written documents.
The National Adult Literacy Survey (NALS) provides sobering data on the document literacy and quantitative skills of the American public. A surprisingly small percentage of the adult population has the ability to extract key information from lengthy and complex consumer contract documents and disclosure forms. Contracts and disclosures for mortgage loans, automobile leases, and other modern transactions are accessible to fewer than 10% of the consumers for whom they are intended.
The present state of the law, regarding contract formation and enforceability, and the various disclosure statutes, take no account of the literacy problem. New approaches are needed to protect consumers and police the marketplace, using means other than the doctrines of fraud, unconscionability, and technical disclosure statutes, and based on the reality of the gap between adult literacy and the readability of contract forms.
Hermeneutics
and Contract Default Rules: An Essay on Lieber and Corbin Lawrence A.
Cunningham, George Washington University Law School, Cardozo Law Review, Vol. 16,
No. 2225, 1995 GWU Law School Public Law Research Paper No. 330, GWU Legal
Studies Research Paper No. 330
Abstract:
The most provocative debate in contemporary contract law scholarship concerns default rule analysis or the manner in which courts fill gaps in incomplete contracts. The nineteenth-century scholar Francis Lieber elaborated a comprehensive solution to the default rules puzzle by first distinguishing the judicial acts of contract interpretation and construction, and then by developing principles of construction with which to choose default rules. Arthur Corbin knew about Lieber's enterprise, but, in his treatise on contracts, dismissed Lieber's distinction and never explored the rest of Lieber's hermeneutics. Had Corbin addressed Lieber, much of the professorial energy expended in the prevailing default rules debate might have been conserved.
Although Lieber’s work was rather limited with respect to the law of contracts, his principles of construction provide an analytical framework with which to understand and guide the way judges choose rules that conflict with the intentions of parties in contract disputes. Because Lieber's principles constitute foundational ideas, a return to them may be both efficient in conserving intellectual energy and profitable in providing fresh insights into the problems to which the ideas apply. By reviewing the distinction between interpretation and construction as Corbin adapted it from Lieber in Part I and then showing how Lieber's principles of construction bear directly on the prevailing default rules debate in Part II, this Essay invites a return to those foundational ideas and the addition of hermeneutics to the default rules debate. This essay's discussion of Lieber's hermeneutics - adapted for contract law according to Corbin's distinction between interpretation and construction - is tentative and general. It recognizes a potential intellectual debt owed to Lieber, who has been a neglected figure in contemporary American legal thought. And while Corbin has been treated as the legal academy's equivalent of royalty, even his distinction between interpretation and construction has been underappreciated.
Incrementalism: Eroding the Impediments to a Global Public Procurement Market by Christopher R. Yukins,
Steven L. Schooner, George Washington University - Law School
Georgetown Journal of International Law, Vol. 38, No. 529, 2007
GWU Legal Studies Research Paper No. 320
GWU Law School Public Law Research Paper No. 320
Abstract:
Following decades of international negotiations and agreements, the world's multi-trillion-dollar public procurement market appears to be maturing into a free, open international market. To reach that point, nations must lower a broad array of barriers to trade in procurement. As the U.S. experience demonstrates, purchasing agencies, laboring under the constraints of domestic preferences, may effectively seek to promote free trade. At the same time, a variety of international organizations, from the World Trade Organization to Transparency International, have developed tools and instruments - including model codes and explicit nondiscrimination agreements - that ease barriers to trade in procurement. To accelerate the erosion of these barriers, this Article suggests assessing progress in four potentially overlapping steps: nondiscrimination, a political decision; harmonization, an effort to coordinate the international instruments; rationalization, an effort to enhance the efficiency of regimes launched under the international instruments; and, institutionalization, an integration of the evolving international procurement norms into the legal fabric of the nations entering the international free market in procurement.
Integrating Integrity and Procurement: The United Nations Convention Against Corruption and
the UNCITRAL Model Procurement Law, Christopher R. Yukins, George Washington
University - Law School GWU Legal Studies Research Paper No. 282, GWU Law School
Public Law Research Paper No. 282, Public Contract Law Journal, Vol. 36, No. 3,
2007.
Abstract:
Traditionally, procurement reform and anti-corruption initiatives have followed separate tracks, although they share a common purpose: a sound government, supported by a robust and politically legitimate procurement system. Now two initiatives at the United Nations may integrate those disparate strands. The United Nations Commission on International Trade Law (UNCITRAL) is working to reform the UNCITRAL Model Law on Procurement of Goods, Construction and Services(the UNCITRAL Model Procurement Law), an important instrument for harmonizing, and strengthening, procurement systems throughout the developing world. At the same time, the U.N. Convention Against Corruption, a sweeping commitment to fight corruption internationally, has been signed by 140 countries. This paper reviews how the two U.N. initiatives can work together, and concludes that the UNCITRAL Model Procurement Law provides precisely the sort of structured system of rules called for by the Convention. Moreover, by containing corruption, the U.N. Convention could make it possible to loosen at least some of the cautious constraints that confine most procurement systems, including those under the UNCITRAL Model Procurement Law. Ultimately, therefore, the U.N. Convention Against Corruption, if prudently implemented, could serve as a catalyst for procurement reform around the world. More broadly, the two U.N. initiatives show the powerful synergies that can be gained by carefully coordinating procurement reform and anticorruption efforts.
The FTCA
Discretionary Function Exception and Accounting Malpractice
Steven L. Schooner George Washington University - Law School GWU Law School
Public Law Research Paper No. 302 GWU Legal Studies Research Paper No. 302 The
Army Lawyer, March 1999 and September 1996
Abstract:
These two short pieces discuss General Dynamics Corp. v. United States, in which the Ninth Circuit reversed what appeared to be the first successful use of the Federal Torts Claims Act (FTCA) by a government contractor to pursue a professional malpractice claim against a federal agency, awarding more than $25 million in damages due to professional malpractice committed by the Defense Contract Audit Agency (DCAA). The latter piece: (1) briefly summarizes the history of the case, explaining how a routine contractual compliance audit lead to a $25 million malpractice award; (2) introduces the discretionary function exception to the FTCA; (3) examines the application of the discretionary function exception in the context of prosecutorial discretion; (4) discusses two significant cases that demonstrate the fragile boundaries of the discretionary function exception; (5) describes guidance from the Department of Justice for government counsel faced with raising the discretionary function exception to dismiss FTCA actions; and (6) concludes by acknowledging that efforts to reign in the scope of the discretionary function exception to the FTCA are sure to continue. The earlier piece discusses the district court decision.
What Next? A
Heuristic Approach to Revitalizing the Contract Disputes Act of 1978
Steven L. Schooner George Washington University - Law School GWU Law School
Public Law Research Paper No. 298 GWU Legal Studies Research Paper No. 298
Public Contract Law Journal, Vol. 28, p. 635, 1999
Abstract:
This essay, included in a 1999 special issue examining the Contract Disputes Act (CDA) of 1978 at its twentieth anniversary, begins from the premise that the statute's critics have valid reason to perceive that the CDA fails to provide a "fair and balanced system of administrative and judicial procedures for the settlement of claims and disputes." The essay suggests a framework for a meaningful debate over what an improved and invigorated CDA should look like but, in the end, raises more questions than it answers. Its purpose is heuristic; to frame a debate (which many feel is long overdue) as to what the CDA should do and how it should do so. It introduces a then-recent effort to articulate core principles for government procurement dispute resolution, then deems the effort an unsatisfactory platform for heuristic analysis. It attempts to determine the necessity for a dispute resolution statute and suggests that the fundamental purpose for such legislation is no more than to waive the Federal Government's immunity from suit. The essay then turns to the breadth of an appropriate waiver. Finally, it examines a number of issues, such as the nature of judicial and administrative fora and the certification requirement, that permeate our present system. The essay concludes by suggesting, at very least, that we should ask the difficult questions
A Conceptual Framework for Choice of Form for Acquisition Contracts, Paul Eremenko
Booz-Allen-Hamilton, Inc.; Georgetown University - Law Center; California Institute of Technology; Massachusetts Institute of Technology (MIT), April 30,2007.
Abstract: The objective of this work is to create a comprehensive conceptual framework for informing the choice between firm-fixed price and cost-plus contract forms in acquisition or procurement contracts. The effects and relative magnitudes of quality and productivity incentives, economic profit, allocation of risk, and the option value of contract changes between the two contractual forms is discussed.
Private Security Contractors in
Iraq: Background, Legal Status, and Other Issues June 21, 2007, Jennifer K.
Elsea Legislative Attorney American Law Division, Nina M. Serafino Specialist in
International Security Affairs Foreign Affairs, Defense, and Trade Division, Congressional Research Service.
From the Summary
The United States is relying heavily on private firms to supply a wide variety
of services in Iraq, including security. From the information available in
published sources, this apparently is the first time that the United States has
depended on contractors to provide such extensive security in a hostile
environment, although it has previously contracted for more limited security
services in Afghanistan, Bosnia, and elsewhere. In Iraq, private firms known as
Private Security Companies (PSC) are currently providing security services such
as the protection of individuals, nonmilitary transport convoys, buildings and
other economic infrastructure, as well as the training of Iraqi police and
military personnel.
GUARDING THE GOVERNMENT’S COFFERS: THE NEED
FOR COMPETITION REQUIREMENTS TO SAFEGUARD FEDERAL GOVERNMENT PROCUREMENT,
Lani A. Perlman, 75 Fordham Law Review 3817, 2007.
From the
author’s introduction This Note examines the results of DHS’s
exemption from competitive contracting requirements and argues that open
competition, as enshrined in the Competition in Contracting Act (CICA),19 is the
best means to safeguard government procurement from waste, fraud, and abuse.
Part I of this Note describes the history of competitive contracting
requirements in federal government procurement. While there is universal
agreement that government procurement must be timely, cost-effective, and fair,
there is a deep divide over the best means to reach those end goals. Part II of
this Note examines the conflict between the rule-based competition requirements
embodied in CICA and the discretionary decision-making scheme implemented by the
Reinventing Government reform movement. This Part also examines the effort to
rebuild after Hurricane Katrina, as a case study in the dangers of
noncompetitive contracting. Finally, Part III of this Note proposes that the
best means to ensure the fundamental goals of timeliness, cost-effectiveness,
and fairness is a return to statutory competition requirements, with only
specific and limited exemptions for national security.
Defense Acquisition: Overview,
Issues, and Options for Congress June 4, 2007, Congressional Research
Service-Report to Congress,
SUMMARY: Department of
Defense (DOD) activities to provide military capabilities for the
defense of the nation are usually controversial and always complex.
Those activities are generally referred to as defense acquisition. The
structure DOD utilizes to plan, execute and oversee those activities is
a highly intricate and multi-variate “system of systems”
composed of the requirements, resource allocation and acquisition
systems. This system of systems has evolved over time, its foundation
being the report published by the Packard Commission in 1986, with many
of those recommendations becoming part of the Goldwater-Nichols
Department of Defense Reorganization Act of 1986. This evolution
continued after the Goldwater-Nichols Act as the requirements system
changed from a threat-based to a capabilities-based system; the resource
allocation system added execution reviews and concurrent program and
budget reviews; and the acquisition system changed from a structured,
rigid process to a flexible, tailored process.(From the website of the Federation of American Scientists www.fas.org)
Integrity in Public Procurement: GOOD PRACTICE FROM A TO Z, ELODIE BETH
Organization for Economic Co-Operation and Development (OECD), 2007.
Abstract Lack of transparency and accountability were recognised as a major threat to integrity in public procurement at the 2004 OECD Global Forum on Governance: Fighting Corruption and Promoting Integrity in Public Procurement. To verify this hypothesis, the OECD Public Governance Committee launched a survey primarily targeted at procurement practitioners in charge of designing, supervising and managing procurement processes in central governments. Auditors, members of competition authorities and anticorruption specialists have also been involved. On the basis of the information collected, good practices were identified by government officials, representatives from civil society and private sector at the OECD Symposium: Mapping out Good Practices for Integrity and Corruption Resistance in Public Procurement in November 2006.
This project maps out good practices, that is, successful measures for enhancing integrity in public procurement. It is a complementary part of multidisciplinary efforts in the OECD to improve public procurement systems, in particular: (1) Assessments of public procurement systems in developing countries by the Aid Effectiveness and Donor Practices Working Party of the Development Assistance Committee; (2) Analysis of bribery in public procurement by the Working Group on Bribery in International Business Transactions; and (3) Studies of the central procurement structure and capacity as well as review and remedies systems of the European Union Member States bythe Support for Improvement in Governance and Management Programme (SIGMA).
Feature Comment: Enhancing -
Aligning Proposed Contractor Compliance Requirements With Broader
Advances in Corporate Compliance, Christopher R. Yukins, George
Washington University - Law School GWU Law School Public Law Research
Paper No. 264 GWU Legal Studies Research Paper No. 264 Government
Contractor, Vol. 49, p. 166, April 25, 2007.
Abstract:
In this brief comment, Professor Christopher Yukins reviews a proposed rule to require major federal contractors to put corporate compliance systems in place. By shifting more compliance requirements to the Federal Acquisition Regulation itself, and by giving those requirements real force, the proposed rule will enhance integrity in the procurement system. Professor Yukins argues, though, that to improve on the proposed rule, regulators should recognize that the market has moved a step beyond the proposed rule: most contractors already benchmark their compliance systems against the U.S. Sentencing Commission’s more demanding standards, and some contractors have gone even further, to integrate their corporate compliance efforts with broader quality assurance systems. (With permission of the publisher Thomson/West Apr. 25, 2007)
Contractual Dispute Resolution in International Trade:
The UNCITRAL Arbitration Rules (1976) and the UNCITRAL Conciliation
Rules (1980) Gavan Griffith, Independent, Andrew D. Mitchell, Melbourne
Law School, U of Melbourne Legal Studies Research Paper No. 217 Melbourne
Journal of International Law, Vol. 3, p. 184, 2002
Abstract:
Over the past few decades, international commercial dispute resolution has witnessed substantial change and improvement. A notable feature has been a move away from the traditional court-based litigation model, allowing exploration of other methods and techniques. The United Nations Commission on International Trade Law (“UNCITRAL”) has played an important role in this development of alternative dispute resolution. Since its establishment in 1966 UNCITRAL has made improving international commercial dispute resolution one of its priorities. Two important achievements arising from its efforts are the UNCITRAL Arbitration Rules (1976) (“Arbitration Rules”) and the UNCITRAL Conciliation Rules (1980) (“Conciliation Rules”). The products of active participation ofules”). The products of active participation of international experts from various legal, economic and social backgrounds, both have made a significant contribution to the more efficient resolution of international commercial disputes.
Both sets of Rules are based on agreement between the parties, operating on a private contractual rather than public statutory level. This is an important point which distinguishes the Rules from UNCITRAL's other major achievement in dispute resolution: the UNCITRAL Model Law on International Commercial Arbitration ('Model Law'). The Rules are a form of contractual trade law dispute resolution. Since the expectations of the private parties to an arbitration or conciliation under the Rules risk being frustrated by the domestic laws of different countries, the Model Law provides countries with a template that they can adopt for their national laws in order to 'provide a hospitable legal climate for international commercial arbitration.'
This article intends to serve as an introduction to the Rules. We begin by distinguishing conciliation from arbitration and explaining the comparative strengths and weaknesses of these two forms of dispute resolution. We then give an outline of the Arbitration Rules in the context of ad hoc and institutional arbitration generally, followed by an assessment of the influence and acceptance of the Arbitration Rules. We provide a similar analysis of the Conciliation Rules, before concluding with a look at the likely development of the two sets of Rules in the future.
Emerging Policy and Practice Issues (2006), Steven
L. Schooner George Washington University - Law School Christopher R.
Yukins George Washington University Law School, West Government Contracts
Year in Review Conference, 2006
Abstract:
This paper, presented at the West Government Contracts Year in Review Conference (covering 2006), attempts to identify the key trends and issues for 2007 in U.S. federal procurement. In large part, the paper discusses the "Draft Final" Report of the Acquisition Advisory Panel (AAP), a blue-ribbon commission mandated by Section 1423 of the Services Acquisition Reform Act (SARA). Proceeding from the simple premise that the private sector does a better job with procurement by planning carefully and employing aggressive competition, we discuss, among other things, the inaccuracies that plague the Federal Procurement Data System; the dramatic post-2000 trend in increased procurement spending; the AAP's tame recommendations for commercial purchasing; and efforts to reign in (and responsibly utilize) interagency contracting. We also question the administration's relentless focus on competitive sourcing and critique the leadership vacuum that led to the longstanding and increasingly critical acquisition workforce shortage.
Material from the FBA Program-The Federal Funding Accountability and Transparency Act of 2006, February 01, 2007. Also see Pub Law 109-282 and Senate report.
Current Problems with Multiple Award
Indefinite Delivery/Indefinite Quantity Contracts: A Primer Major
Michael C. Wong, The Army Lawyer, September 2006.
Much of the
Department of Defense (DOD) spending is on service contracts through
task orders issued under multipleaward contracts, allowing for a
streamlined, flexible acquisition process. This primer discusses the
fundamentals of multiple award indefinite delivery/indefinite quantity
(ID/IQ) contracting and current problems associated with the multiple
award ID/IQ system. The article focuses specifically on problems in the
area of competition, including the lack of fair opportunity to compete,
out of scope orders, lack of adequate supervision, and other
miscellaneous problems with the multiple award ID/IQ system. The first
section discusses the basic terminology and legal requirements of the
multiple award ID/IQ system. The second section deals with additional
legal requirements resulting from congressional modifications designed
to strengthen and encourage competition within the multiple award
system. The third section outlines problems in multiple award ID/IQ
contracting. Multiple award ID/IQ contracting has become an increasingly
important focus area for the U.S. Army and is a challenging area for
acquisition professionals.
Federal Funding Accountability and Transparency Act of 2006 Highlights and Timeframes for Implementation of the Act by Tyson Whitney Office of Federal Financial Management, OMB. A presentation made to the National Grants Management Association. October 2006. Pub. Law 109-282
Procurement Reform in the Defense Authorization Act for Fiscal Year
2007&mdash:A Creature of Compromise, Pointing the Way to Future Debates ,
Christopher R. Yukins, George Washington University Law School The
Government Contractor, Vol. 48, No. 38, October 2006
Abstract: The defense authorization act for fiscal year
2007, the John Warner National Defense Authorization Act for Fiscal Year
2007, H.R. 5122, has been signed into law. This essay reviews some of
the key provisions in the act regarding procurement reform, including:
(1) a renewed focus on lead systems integrators; (2) new technical data
obligations for commercial contractors; (3) waiver procedures for
specialty metals under the Berry Amendment; and (4) new integrity
initiatives, including a GAO study of revolving door hires at major
contractors. The essay notes that the act's many reform measures are
likely stepping-stones to broader reforms. With recent scandals and the
coming 2006 and 2008 elections, the pace of reform is, if anything, likely to accelerate.
The
Gathering Winds Of Reform - Congress Mandates Sweeping Transparency for
Federal Grants And Contracts, Christopher R. Yukins, George
Washington University Law School GWU Law School Public Law Research
Paper No. 224 GWU Legal Studies Research Paper No. 224 Government
Contractor, Vol. 48, No. 34, September 20, 2006
Abstract:
The U.S. Congress, caught in a wave of scandals that stem, in part, from
corrupt contracting, recently passed sweeping legislation to require
that all federal awards (including grants, contracts and task orders) be
published online. This short essay describes the legislation, the
Federal Funding Accountability Transparency Act, and notes that, while
Congress' goal may have been generally to disperse a cloud of
corruption, in practice the Act may bring badly needed transparency to
billions of dollars in task- and delivery-order awards (frameworks
contracting, as this form of contracting is called by the European
Community Directives). Until now, those billions of dollars in orders
under standing contracts have been largely invisible in the U.S. system.
Almost inadvertently, therefore, Congress may have advanced procurement
reform enormously, and may have set the stage for future reforms after
the November 2006 elections.
The Acquisition Advisory Panel And Performance-Based Contracting: A Wasted Year, by Vernon J. Edwards. 20 NO. 7 NASHCIBINIC ¶ 32 Excerpt:In the more than 15 years since the Office of Federal Procurement Policy issued its policy making performance-based contracting the preferred way to buy services, the policy has not caught on. Working-level resistance to performance-based contracting has withstood pilot programs, best practices guides, samples, templates, a variety of handbooks, new regulations, new statutes, annual goals, countless conferences and seminars, unsubstantiated claims of cost savings and quality improvements, and all manner of hype.
This material from THE NASH & CIBINIC REPORT has been reproduced with
the permission of the publisher, Thomson West. Further use without the
permission of the publisher is prohibited. For additional information or
to subscribe, call 1-800-344-5009 or visit west.thomson.com/fedpub. THE
NASH & CIBINIC REPORT is now available on Westlaw. Visit westlaw.com
June 2006 edition of DOD Office of General Counsel Standards of Conduct Office's Encylcopedia of Ethical Failure, Courtsey of Alison Doyle,Co-Chair, ABA Public Contract Law Professional Responsibility and Contracting Ethics Committee.
A Case Study In Comparative Procurement Law: Assessing
UNCITRAL's Lessons for U.S. Procurement, CHRISTOPHER R. YUKINS,
George Washington University Law School, GWU Law School Public Law
Research Paper No. 211, GWU Legal Studies Research Paper No. 211, Public
Contract Law Journal, Vol. 35, No. 3, Spring 2006.
Abstract:
The United Nations Commission on International Trade Law (UNCITRAL) has commissioned a working group, with delegations from many industrialized and developing nations, to reform and update the UNCITRAL Model Law on Procurement of Goods, Construction and Services. The working group is currently reviewing reforms on a number of fronts. This essay focuses on three areas of reform in particular—electronic communications, electronic reverse auctions, and unrealistically low bidding—to gauge whether lessons from the UNCITRAL debate may be useful for reform in the U.S. procurement system. As the essay reflects, the international debate surrounding UNCITRAL reform does in fact yield many lessons for U.S. policymakers. Indeed, the analysis suggests that the U.S. system may be at a point where it would be irresponsible not to consider comparative lessons from reforms abroad, to ensure that U.S. procurement policy draws thought-fully upon lessons learned from other procurement systems around the world.
International Procurement (On 2005 Developments),
CHRISTOPHER R. YUKINS George Washington University Law School, JASON
MATECHAK Reed Smith LLP, DON WALLACE Georgetown University Law Center,
JEFFREY MARBURG-GOODMAN U.S. Agency for International Development, GWU
Legal Studies Research Paper No. 207, GWU Law School Public Law Research
Paper No. 207, Georgetown Public Law Research Paper No. 903423
International Lawyer, Vol. 40, No. 2, Summer 2006
Abstract:
The ABA International Procurement Committee has prepared this update on a number of key international issues in 2005, including: the proceedings at the United Nations Commission on International Trade Law, recent developments involving the Trade Agreements Act in U.S. domestic procurement, and the Organization for Economic Cooperation and Development’s (OECD) work on untying foreign assistance.
Post-Katrina Reconstruction Liability: Exposing the Inferior Risk-Bearer, by Steven L. Schooner and Erin Siuda, George Washington University - Law School
Abstract:
This Article describes the doctrinal, functional, and moral flaws inherent in the Gulf Coast Recovery Act (GCRA), a United States Senate bill that would provide liability protection to government contractors engaged in disaster relief work in the areas devastated by Hurricane Katrina, as well as in future disaster areas. First, the Article discusses the history of the government contractor defense and finds that the protection provided by the GCRA is quite unlike the traditional government contractor defense. This Article further argues that this doctrinal departure cannot be justified on grounds of efficiency or fairness, as the GCRA allocates risk away from government contractors and the government and towards the disaster area residents and relief workers who are potential victims. Finally, this Article notes that even if the sort of protection provided by the GCRA may be justified under some conditions of market failure, there is no empirical evidence that government contractors in the Gulf Coast have experienced such conditions, and there are superior alternatives to the GCRA that could provide such protection while preserving a path for victim compensation. This Article concludes that the GCRA is an untenable solution to a problem that has not been proven to exist, and one that violates the basic principles of good government.
“Constructing a Bid Protest Process: Choices Every Procurement
Challenge System Must Make”, GWU Law School Public Law Research Paper No. 200, GWU Legal Studies Research Paper No. 200, Public Contract Law Journal, Vol. 35, No. 3, 2006, Daniel I. Gordon, Government Accountability Office. Washington, D.C., The George Washington University, Law School
Abstract:
Many public procurement systems, within the United States and
abroad, have established systems for allowing vendors to
challenge the conduct of procurement processes. Providing an
effective domestic review mechanism for vendors who believe that
government procurement officials have not conducted an
acquisition lawfully brings an important measure of transparency
and accountability to public procurement systems. This brief
article discusses the goals of these bid protest systems, and
then presents key choices that must be made in crafting such a
system. For example: Where in the government is the protest forum
located? How broad is the forum’s jurisdiction? Who has standing
to protest? What are the time limits at the forum? What evidence
does the forum receive? Is the procurement put "on hold" during
the protest? How difficult is it for a protester to win? What
power does the forum have to provide meaningful relief? The
article does not describe an ideal bid protest system, but rather
presents the decisions that need to be made when constructing a
bid protest system.
“Consolidation of the Civilian Boards of Contract Appeals: New Legislation’s Impact on Practice Before the Boards”, Program materials from the April 21, 2006 GWU special colloquium.
“Improving Federal Procurement: The Benefits of Vendor-Neutral Contract Specifications” (February 2006). McAfee, R. Preston
Abstract: Government procurements that specify brand names can unnecessarily increase the price of purchases. In 2004, approximately 69 percent of the applicable solicitations for computer systems and technology contained language that either required specific name brand microprocessors, usually Intel, or specified that the processor should be equivalent to a particular brand microprocessor. Such exclusionary language could cost hundreds of millions of dollars unnecessarily. For some products, the variety and complexity of items compel contracting agents to use brand names rather than to detail specific technical requirements and product characteristics. In the case of microprocessors, third-party benchmarks represent a solution to such a procurement specification issue.
Emerging Policy and Practice Issues (2005), STEVEN L. SCHOONER, CHRISTOPHER R. YUKINS,
The George Washington University Law School GWU Legal Studies Research Paper No. 193, GWU Law School Public Law Research Paper No. 193, West Government Contracts Year in Review Conference (Covering 2005)
Abstract:
This paper, presented at the West Government Contracts Year in Review Conference (covering 2005), attempts to identify the key trends and issues for 2006 in U.S. federal procurement. In an effort to make sense of the current reforms, the paper focuses upon what seems to be the common imperative underlying the various initiatives: the need to bring order to a procurement function as it devolves away from the Government user—what some might call the "devolution" or "outsourcing" of the contracting function. The paper also addresses emerging issues including, among others, the death of competitive sourcing; the acquisition workforce crisis; centralized purchasing; public service ethics in the post-Darleen Druyun era; interagency purchasing and fees; post-Hurricane Katrina procurement; electronic procurement and reverse auctions; and conflicts of interest.
“Electronic Reverse Auctions: Lessons Learned, Here and Abroad”—Papers from the February 21, 2006 program by the Government Procurement Law Program, George Washington University Law School
MISADDRESSED REFORM: THE U.S. POSTAL SERVICE’S NEW PROCUREMENT
GUIDELINES By David P. Hendel, January 13, 2006. Posted with permission
from the Washington Legal
Foundation
Relying on the theory if corporations don’t
need them, we don’t need them, the U.S. Postal Service recently
converted its purchasing regulations into “non-binding”
guidelines. 70 Fed. Reg. 20291 (Apr. 19, 2005). What had been 266 pages
of far-sighted purchasing rules which had the force and effect of law
have been downgraded into non-binding guidelines. This LEGAL
BACKGROUNDER examines whether the rationale for taking this action is
justified, whether the guidelines really are “non-binding,” and what the
likely impact will be.
Recent Federal Grants Law Cases November 2005, A November 17, 2005 presentation to the State Department by Jana Gagner, Senior Counsel Federal Assistance Law Division Office of the General Counsel U.S. Department of Commerce. PowerPoint version. PDF Version
Origins and Development of the Contract Clause by JAMES W. ELY Jr.. Vanderbilt University - School of Law November 1, 2005, Vanderbilt Public Law Research Paper No. 05-36
Abstract:
This essay examines the origins and early construction of the contract clause of the Constitution. It points out that the contract clause must be understood in the context of the troubled economic circumstances of post-Revolutionary America. The clause, which was little debated at the Philadelphia convention, can be traced to language in the Northwest Ordinance of 1787. This paper focuses on the contested issue of whether the framers intended the clause to cover only contracts between private parties or to extend to public contracts between states and individuals. As asserted by the Progressive historians, it has long been the dominant position among scholars that Chief Justice John Marshall expanded the meaning of the contract clause when he ruled that the provision governed private contracts. This paper disputes that conventional wisdom and argues that the clause could fairly be construed to safeguard both public and private contracts from state abridgement. It gives attention to discussion at the state ratifying conventions as well as to the views of prominent members of the constitutional convention. The paper also considers pre-Marshall court cases that examined the meaning of the contract clause and the famous 1796 opinion letter by Alexander Hamilton. Although recognizing that it is difficult to establish a collective state of mind concerning the scope of the ban against contractual impairments, the paper concludes that there was ample support for the views later endorsed by the Marshall Court concerning the reach of this provision.
In Memoriam, John Cibinic, Jr.,
RALPH C NASH George Washington University - Law School, JOSEPH A. VERGILIO
Government of the United States of America - Agricultural Research Service
GILBERT J. GINSBURG A-76 Institute, MARY ANNE Q. WOOD Wood Crapo, LLC, JOHN
S. PACHTER Smith, Pachter, McWhorter & Allen, P.L.C., DOUGLAS L. PATIN
Bradley Arant Rose & White LLP, JAMES F. NAGLE Oles Morrison Rinker & Baker,
CLARENCE T. KIPPS Jr. Miller & Chevalier - General STEVEN L. SCHOONER The
George Washington University Law School GWU Law School Public Law Research
Paper No. 169 Public Contract Law Journal, Vol. 35, No. 1, 2005
Abstract:
Professor Emeritus John Cibinic, Jr. died on August 1, 2005. For three decades, he taught at the George Washington University Law School. Throughout that period, and until his passing, John made a huge and lasting contribution to the literature and practice of government contracting. These short pieces, authored by colleagues, students, and friends, offer a glimpse into the impact of John’s full and productive life.
International Cooperation and the Reform of Public Procurement Policies, by
SIMON J. EVENETT University of Oxford - Sad Business School; Centre for
Economic Policy Research (CEPR), BERNARD HOEKMAN World Bank - Development
Economics Research Group (DECRG); Centre for Economic Policy Research
(CEPR) September 2005, World Bank Policy Research Working Paper No. 3720
Abstract: The decision not to launch negotiations in the World
Trade Organization (WTO) on three of the Singapore Issues in the so-called
July 2004 package provides an opportunity to revisit the knowledge base on
which proposals for further international collective action may be drawn.
This paper examines the available evidence on public procurement practices
in developing countries that could be relevant to further multilateral rule
making on state purchasing. Although there is considerable agreement on
ends (efficient, non-corrupt, and transparent public purchasing systems),
little information is available on means and, in particular, on the
effective and replicable strategies that developing countries can adopt to
improve their public procurement systems. A concerted effort to
substantially add to the knowledge base on public procurement reforms in
developing countries, through targeted research and international exchange
of information on implemented procurement policies and outcomes, is
critical to identifying areas where further binding multilateral
disciplines may be beneficial.
Hurricane Katrina’s Tangled Impact on U.S. Procurement, CHRISTOPHER R.
YUKINS The George Washington University Law School GWU Law School Public
Law Research Paper No. 161 GWU Legal Studies Research Paper No. 161,
also published in West Group’s “The Government Contractor”, , Vol. 47, No. 34, September 14, 2005
Abstract:
In the wake of Hurricane Katrina, the U.S. Congress passed new exceptions to U.S. procurement rules. The most important new exception, passed at the recommendation of the Bush administration, raised the limit for micro-purchases - essentially unregulated purchases - from $2,500 to $250,000. In practice, this will mean that Katrina relief purchases may be made, up to $250,000 per order, without any effective transparency or competition, and without honoring the many socioeconomic requirements that are an important part of the U.S. procurement system. This comment reviews that emergency legislation, and suggests that the new law, by abandoning basic principles of sound procurement, raises real risks in the post-Katrina relief effort, including risks of corruption and risks of gross failures in best value procurement.
Uses and Abuses of O&M Funded Construction: Never Build on a Foundation of Sand, Army Law., August 2005, at 1, by Major Brian A. Hughes, Administrative Law Attorney, Personnel
Law Branch, Office of the Judge Advocate General, U.S. Army.
Introduction The Global War on Terror (GWOT) has required U.S.
forces to re-deploy from their Cold War garrisons to new battlefields
throughout the world. Commanders have quickly built small, temporary bases
to support military forces in underdeveloped countries worldwide. Some of
these bases are required for staging, logistics, and training, while others
directly support joint and combined combat operations. While U.S. forces
have had great tactical success in meeting new threats, the legal framework
for funding military construction has not adapted to the new security
environment. Maintaining the initiative in the GWOT requires agile forces
able to deploy, operate, and sustain themselves on short notice anywhere in
the world. Military construction funding, however, remains mired in a
multi-year budgeting cycle, with appropriations geared toward maintaining
the existing Cold War infrastructure.
Suspension and Debarment of Soldiers: Can We Do It? Yes, We
Can, Army Law., June 2005, at 33, by Captain Scott N. Flesch, Trial
Attorney, Contract Appeals Division.
Chief Warrant Officer Two
(CW2) Sticky Fingers, an aviation maintenance officer, is the approving
official for all government purchase card (IMPAC)2 transactions by his
department at Fort Irvine, California.3 Essentially, anything sought to
be purchased or procured using the IMPAC goes through CW2 Fingers for
review and approval. Due in part to the operational tempo at Fort
Irvine, compliance and oversight of the IMPAC program are lacking.
Sensing an opportunity for supplemental income, CW2 Fingers met
individually with three cardholders whom he trusted. Chief Warrant
Officer Two Fingers contrived a scheme for each cardholder to purchase
electronic items for personal use from stores that accepted the IMPAC.
Chief Warrant Officer Two Fingers collects the items (e.g., cell phones,
PDAs, digital cameras) and auctions them over the Internet. In exchange
for their assistance, CW2 Fingers kicks back fifty percent of the
proceeds from the sale of the goods. Before submitting a certified
consolidated bill for the purchases to the Defense Finance and
Accounting Service, CW2 Fingers alters and/or creates receipts to
reflect otherwise legitimate purchases and prevent detection. In the two
years of this ongoing conspiracy, CW2 Fingers makes $356,000 for himself
and his co-conspirators.
After an investigation by Fort Irvine’s
Criminal Investigation Command (CID), the government prefers charges
against CW2 Fingers to include: conspiracy, failure to obey an order,
larceny, and bribery. Chief Warrant Officer Two Fingers has eighteen
years of active duty service and plans to work for one of several
commercial vendors he established a relationship with as an approval
official when he retires.
FEDERAL SUPPLY SCHEDULES COMPETITION—“COMPETITIVE QUOTES ON FSS BUYS: HOLD THE PICKLE, HOLD THE MAYO-CAN YOU HAVE IT YOUR WAY AND STILL HAVE COMPETITION?”, by MAJOR DANA J. CHASE, 184 Mil. L. Rev. 129, (2005).
BEYOND ACCOUNTABILITY: THE CONSTITUTIONAL, DEMOCRATIC, AND STRATEGIC PROBLEMS WITH PRIVATIZING WAR, by JON D. MICHAELS, Washington University School of Law, Washington University Law Quarterly, Vol. 82, No.3, Fall 2004. A 127 page article discussing the contractors in the battlespace. From the Table of Contents
I. INTRODUCTION
II. THE MODERN AMERICAN EXPERIENCE WITH MILITARY
PRIVATIZATION
III. THREATENING THE NATIONAL SECURITY CONSTITUTION
IV.
UNDERMINING THE INSTITUTIONAL INTEGRITY AND STRATEGIC COMPETENCE OF THE
U.S. MILITARY
V. INTERNATIONAL LAW/DIPLOMACY HARMS
VI.CONCLUSION
Removing Federal Services Acquisition Barriers And Balancing Public and Private Interest—Task Force on Service Contracting, May 17, 2005. Established by Contract Services Association In Conjunction With Professional Services Council National Defense Industrial Association Information Technology Association of America. Also available on the Contract Services Association website at http://www.csa-dc.org.
Commentary on the Acquisition Workforce, STEVEN L. SCHOONER, CHRISTOPHER R. YUKINS,
The George Washington University Law School
GWU Law School Public Law Research Paper No. 147; GWU Legal Studies Research Paper No. 147
Government Contractor, Vol. 47, Nos. 203 & 204, 2005
Abstract:
Recognizing the need to focus on the strategic management of the federal acquisition workforce, the Office of Federal Procurement Policy (OFPP) promulgated Policy Letter 05-01, Developing and Managing the Acquisition Workforce. These two brief pieces discuss the policy letter and what it signals to the acquisition community.
December 2009 Issue