Law Commons^™

The Compliance Mentorship Program: Improving Ethics And Compliance In Small Government Contractors, Jessica Tillipman, Vijaya Surampudi

GW Law Faculty Publications & Other Works

Over the past decade, the anti-corruption, ethics, and compliance landscape has changed dramatically. This is a direct consequence of a global anti-corruption enforcement effort led by the United States through its enforcement of the Foreign Corrupt Practices Act. The increase in enforcement has also been spurred by the adoption of several multilateral anti-corruption agreements, such as the Organization for Economic Co-operation and Development (OECD) Anti-Bribery Convention and the United Nations Convention Against Corruption (UNCAC). These agreements have spurred several countries to enact anti-corruption laws, such as the U.K. Bribery Act, Brazil’s Clean Company Act, and France’s Loi Sapin II. The …

Emerging Policy And Practice Issues, Steven L. Schooner, David Berteau

GW Law Faculty Publications & Other Works

This paper, presented at the West Government Contracts Year in Review Conference (covering 2013), attempts to identify the key trends and issues in U.S. federal procurement for 2013. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement spending trend and attempts to predict what lies ahead. Budgetary and financial insecurity were less significant last year, but there is no question that the spending reduction represents a meaningful change in the long-term trend. More broadly, the paper discusses agency purchasing data (particularly at the Defense Department), grants spending and major changes in uniform guidance, the continued Defense …

Feature Comment: Considering The Effects Of Public Procurement Regulations On Competitive Markets, Christopher R. Yukins, Jose A. Cora

GW Law Faculty Publications & Other Works

Professor Albert Sanchez Graells of the University of Hull (UK) recently published a vitally important book on procurement law, Public Procurement and the EU Competition Rules (Hart Publishing 2011). In his study, Sanchez Graells asked what seems like a simple question: Shouldn’t regulators, when writing procurement regulations, consider the likely impact of those regulations on competitive markets? Sanchez Graells pointed out that far too little attention has been paid to the anticompetitive impact of public procurement regulation. This article assesses Sanchez Graells’ thesis from a U.S. perspective. In many ways the U.S. federal procurement system stands at one end of …

Bid Protests: The Costs Are Real, But The Benefits Outweigh Them, Daniel I. Gordon

GW Law Faculty Publications & Other Works

The author analyzes the costs and benefits of bid protests, with a focus on protests filed at the Government Accountability Office (GAO). The author explains that the costs are often overstated, in that GAO’s reporting methodology leads observers to overstate the number of protests and the frequency of successful protests. The author also reports on research regarding what happens after GAO sustains protests, and indicates that firms that successfully protest to GAO generally do not obtain the contract that was the subject of the protest. The article also explains that the “automatic stay” of procurements triggered by a protest to …

Cross-Debarment: A Stakeholder Analysis, Christopher R. Yukins

GW Law Faculty Publications & Other Works

As more nations and organizations establish debarment (or "blacklisting") systems, to exclude corrupt or incompetent firms and individuals from contracting, a serious question has arisen: if a contractor is debarred, should other jurisdictions automatically exclude that contractor in a "cross-debarment"? This paper, which grew out of an October 2012 symposium at the World Bank, discusses the advantages and disadvantages of cross-debarment, from the standpoint of various stakeholders. The article concludes that some stakeholders (such as debarring officials themselves) might prefer that there be no automatic cross-debarment, so that government officials retain discretion -- and so leverage -- to persuade contractors …

Rethinking The World Bank’S Sanctions System, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The World Bank is reviewing its system for suspending and debarring contractors (known formally as the World Bank sanctions system). The system is used to suspend and debar contractors that have engaged in fraud or corruption (and other enumerated bad acts) related to Bank-financed projects. After reviewing the sanctions process, and identifying what appear to be the Bank’s current goals in its sanctions system (stemming reputational and fiduciary risks), the article recommends that the World Bank defer finalizing any reforms until it concludes its assessment of first principles, and has at hand all the data necessary to assess the sanctions …

The Contract Management Body Of Knowledge: Understanding An Essential Tool For The Acquisition Profession, Neal J. Couture, Steven L. Schooner

GW Law Faculty Publications & Other Works

The collective knowledge of any profession is commonly referred to as its body of knowledge. In the acquisition, procurement, or government contracting profession, the collective wisdom of the National Contract Management Association (NCMA) organizes, and periodically updates, a broadly accepted conceptual inventory of the profession’s acquired knowledge. This article describes the NCMA Guide to the Body of Knowledge, how it was developed and is maintained, and its importance and relevance to people concerned with the contract management profession.

The Congressional War On Contractors, Jessica Tillipman

GW Law Faculty Publications & Other Works

The U.S. Suspension & Debarment regime is designed to ensure that the federal government does business only with “responsible” partners. One of the most fundamentally (and frequently) misunderstood aspects of the FAR 9.4 suspension & debarment system is that these tools are only to be used for the purpose of protecting the Government, not to punish contractors for their past misconduct. Unfortunately, recent congressional initiatives demonstrate many legislators’ desire to transform debarment into a tool of punishment by banishing contractors from the procurement system “with little consideration of whether such action is needed or fair."

Instead of focusing on the …

Emerging Policy And Practice Issues (2012), Steven L. Schooner, David J. Berteau

GW Law Faculty Publications & Other Works

This paper, presented at the West Government Contracts Year in Review Conference (covering 2012), attempts to identify the key trends and issues for 2013 in U.S. federal procurement. Budgetary and financial insecurity emerge as the most significant emerging issues in government contracting. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement spending trend and attempts to predict what lies ahead. Among other things, it discusses the pending sequestration, procurement spending rates, agency purchasing data (particularly at the Defense Department, Department of Homeland Security, and the Department of State and the Agency for International Development), grants spending, …

Anti-Corruption Internationally: Challenges In Procurement Markets Abroad—Part Ii:The Path Forward For Using Procurement Law To Help With Development And The Fight Against Corruption, Daniel I. Gordon

GW Law Faculty Publications & Other Works

This paper, presented at the West Government Contracts Year in Review Conference (covering 2012), discusses developing issues in international public procurement. Among other things, the paper suggests that there is growing recognition of the role that procurement can play in national development and the fight against corruption. In the paper the author points out that, while there is a worldwide trend toward more and more similar procurement systems, that trend does not mean that procurement systems are becoming, or should become, uniform. Moreover, the author contends in the paper that procurement law has only a limited role in national development …

The Wto’S Revised Government Procurement Agreement - An Important Milestone Toward Greater Market Access And Transparency In Global Public Procurement Markets, Robert D. Anderson, Steven L. Schooner, Collin D. Swan

GW Law Faculty Publications & Other Works

In December of 2011, the Parties to the World Trade Organization Government Procurement Agreement (GPA) adopted significant revisions to the Agreement. The revised Agreement comprises (a) a much-needed modernization of the text of the Agreement, (b) an expansion of related market-access commitments by the Parties, and (c) a set of Future Work Programs intended to enhance transparency among the Parties and improve the administration of the Agreement. In these unstable economic times, the importance of the GPA and its improvements cannot be overstated.

This article also bemoans the media's misrepresentation of the ongoing process of China's negotiated accession into the …

A House Of Cards Falls: Why 'Too Big To Debar' Is All Slogan And Little Substance, Jessica Tillipman

GW Law Faculty Publications & Other Works

“A House of Cards Falls: Why ‘Too Big to Debar’ is All Slogan and Little Substance” is a critical response to the article, "FCPA Sanctions: Too Big to Debar" by Drury D. Stevenson and Nicholas J. Wagoner, which aptly demonstrates a common, yet fundamentally flawed understanding of the FAR 9.4 suspension and debarment regime. "Too Big to Debar" asserts that when large government contractors violate the Foreign Corrupt Practices Act (FCPA), they should be “punished” by being debarred from the procurement system. Indeed, despite FAR 9.4’s clear directive to use debarment only for the purpose of protecting the government, not …

Affirmatively Inefficient Jurisprudence?: Confusing Contractors’ Rights To Raise Affirmative Defenses With Sovereign Immunity, Steven L. Schooner, Pamela Kovacs

GW Law Faculty Publications & Other Works

In M. Maropakis Carpentry v. United States, the U.S. Court of Appeals for the Federal Circuit upset the commonly understood rules of practice and procedure for government contracts dispute litigation. In what the Supreme Court might view as a drive-by jurisdictional ruling, the court held that a contractor must file its own claim for time extensions before it can defend against a government claim for liquidated damages. Two Court of Federal Claims cases then confirmed fears that the decision would create a significant, disruptive, and disadvantageous change in procedural posture for a large number of contractors defending against government …

Dead Contractors: The Un-Examined Effect Of Surrogates On The Public’S Casualty Sensitivity, Steven L. Schooner, Collin D. Swan

GW Law Faculty Publications & Other Works

Once the nation commits to engage in heavy, sustained military action abroad, particularly including the deployment of ground forces, political support is scrupulously observed and dissected. One of the most graphic factors influencing that support is the number of military soldiers who have made the ultimate sacrifice on the nation’s behalf. In the modern era, most studies suggest that the public considers the potential and actual casualties in U.S. wars to be an important factor, and an inverse relationship exists between the number of military deaths and public support. Economists have dubbed this the "casualty sensitivity" effect.

This article asserts …

Emerging Policy And Practice Issues (2011), Steven L. Schooner, David J. Berteau

GW Law Faculty Publications & Other Works

This paper, presented at the West Government Contracts Year in Review Conference (covering 2011), attempts to identify the key trends and issues for 2012 in U.S. federal procurement. It begins from the premise that the most significant emerging issue in government contracting, looking ahead, is the money (or lack of it). As the fiscal belt tightens, the procurement landscape - what the government buys, from whom, and how - will necessarily change. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement spending trend and attempts to predict what lies ahead. It also discusses the proliferation of …

Reflections On The Federal Procurement Landscape, Daniel I. Gordon

GW Law Faculty Publications & Other Works

This paper, published in the Government Contractor, presents the reflections on the author's service as the Administrator for Federal Procurement Policy from 2009 through 2011. The author identifies his three goals for his tenure as Administrator: strengthening the federal acquisition workforce, driving fiscal responsibility in federal acquisition, and rebalancing the relationship with contractors. The author points to reversal of several negative trends, in particular, decline in the size of the federal acquisition workforce during the years 1992-2009, unsustainable annual increases in procurement spending during those years, and an unhealthy overreliance on contractors in performance of key government functions. In each …

Desiderata: Objectives For A System Of Government Contract Law, Steven L. Schooner

GW Law Faculty Publications & Other Works

This brief paper - presented at a symposium presented for a developing nation engaged in drafting of a government procurement law - offers a diverse menu of aspirations frequently mentioned in the context of public purchasing. This paper introduces nine goals frequently identified for government procurement systems: (1) competition; (2) integrity; (3) transparency; (4) efficiency; (5) customer satisfaction; (6) best value; (7) wealth distribution; (8) risk avoidance; and (9) uniformity. The exercise of identifying aspirations is important, particularly because it is difficult for legislators or policymakers to articulate what they hope to achieve through a buying regime. While no system …

Venture Capital Investment And Small Business Affiliation Rules: Why A Limited Exception Is Crucial To Economic Recovery Efforts, Jessica Tillipman, Damian Specht

GW Law Faculty Publications & Other Works

Small businesses and venture capital are a natural pair. While many small businesses are born of technical expertise and innovation, few are well financed. One of the reasons for this lack of financing is that small concerns are often viewed as risky investments. Small businesses are rarely led by experienced business people and, as many statistics demonstrate, are more likely than not to fail. Unlike their under financed counterparts, venture capital companies (“VCCs”) are well financed and what they lack in technical capability, they make up for in business acumen and financial wherewithal. Moreover, risky investments with large upsides are …

The Foreign Corrupt Practices Act & Government Contractors: Compliance Trends & Collateral Consequences, Jessica Tillipman

GW Law Faculty Publications & Other Works

As Government contractors expand their business overseas, they expose themselves to the risk of violating the Foreign Corrupt Practices Act (FCPA) and the high sanctions that accompany those violations. Given the nature of a Government contractor’s business, they are naturally at greater risk of violating the FCPA than those companies that do not interact with Government officials on a regular basis.

This article begins by providing an overview of the FCPA and a review of recent FCPA enforcement trends, and then considers the collateral consequences of a violation of the FCPA by Government contractors. In addition to fines, penalties, and …

A Random Walk: The Federal Circuit’S 2010 Government Contracts Decisions, Steven L. Schooner

GW Law Faculty Publications & Other Works

This Article discusses the Federal Circuit's 2010 government contracts cases. It begins with some perspective on, and empirical quantification of, the Federal Circuit’s level of specialization and evolving jurisprudence in the field of government contracts. It eventually turns to analysis of a hodge-podge of unrelated cases: three award controversies (or bid protests), a handful of post award performance disputes, a few selections from the ongoing behemoths of litigation in the U.S. Court of Federal Claims - Winstar and Spent Nuclear Fuel, and a potentially analogous implied warranty case. Overall, the article suggests that the Federal Circuit's 2010 government contracts cases …

The Draft Oci Rule - New Directions And The History Of Fear, Christopher R. Yukins

GW Law Faculty Publications & Other Works

After years of rancor and debate, the Office of Federal Procurement Policy and the FAR Councils in April 2011 finally issued a proposed revision to the regulations governing organizational conflict of interests (OCIs) in federal procurement. The proposed rule marked an extraordinary change of direction - in some ways, it would reorder policy priorities built up over years of case law - but also may have reflected the drafters’ nagging ambivalence about the new direction. The proposed OCI rule marked a significant change in direction in part because policymakers’ core concerns - their core fears concerning conflicts of interest - …

Contractors And The Ultimate Sacrifice, Steven L. Schooner

GW Law Faculty Publications & Other Works

This brief article quantifies how, in Iraq and Afghanistan, contractor personnel increasingly have made the ultimate sacrifice alongside, or in lieu of, service members. The enormity of the contractor sacrifice gives pause - more than 2,000 contractors have been killed in Iraq and Afghanistan. But what is more striking is that contractors are bearing an increasing proportion of the annual death toll. In the first half of 2010, more contractors died in Iraq and Afghanistan supporting the war effort than members of the U.S. military waging these wars.

Emerging Policy And Practice Issues (2010), Steven L. Schooner, David J. Berteau

GW Law Faculty Publications & Other Works

This paper, presented at the West Government Contracts Year in Review Conference (covering 2010), attempts to identify the key trends and issues for 2011 in U.S. federal procurement. The paper, among other things, focuses on the intense activity that emanated from the Defense Department, primarily through USD(AT&L) Ashton Carter’s Efficiency and Productivity Initiative; summarizes empirical evidence that the federal procurement spending growth cycle finally has run its course; offers a window into the concentration of spending amongst the largest contracting agencies and government contractors; points out that, despite all of the attention focused upon government contracting, over the last decade …

Hiring Law Professors: Breaking The Back Of An American Plutocratic Oligarchy, Daniel I. Gordon

GW Law Faculty Publications & Other Works

Law students and the consumers of legal services like to think that professors are hired by law schools on the basis of pure intellectual ability and achievement. No doubt, individual intellectual ability and achievement play significant roles in law school faculty hiring. However, another important dynamic is overlooked, wealth.

Emerging Policy And Practice Issues (2009), Steven L. Schooner, David J. Berteau

GW Law Faculty Publications & Other Works

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 …

Federal Contracting And Acquisition: Progress, Challenges, And The Road Ahead, Steven L. Schooner

GW Law Faculty Publications & Other Works

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.

A Versatile Prism: Assessing Procurement Law Through The Principal-Agent Model, Christopher R. Yukins

GW Law Faculty Publications & Other Works

Over the past several decades, the federal procurement system in the United States has grown remarkably, and now totals over $500 billion annually.

Over that same period, the rules governing federal procurement have been buffeted by broad efforts at reform. At no point, however, have we ever had an overarching theory - a model or prism - through which to assess the procurement system or its reform. Agency theory provides one such theoretical model. Long established in economics and the other social sciences, the principal-agent model (agency theory) provides a model to explain successes (and failures) in organizational structures, and …

Tempering 'Buy American' In The Recovery Act - Steering Clear Of A Trade War, Steven L. Schooner, Christopher R. Yukins

GW Law Faculty Publications & Other Works

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 beleive 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 …

Emerging Policy And Practice Issues (2008), Steven L. Schooner, David J. Berteau

GW Law Faculty Publications & Other Works

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. …

The European Defense Procurement Directive: An American Perspective, Christopher R. Yukins

GW Law Faculty Publications & Other Works

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. …