Law Commons^™

Promoting Sustainable Public Procurement Through Economic Policy Tools: From Moral Suasion To Nudging, Desiree Klingler, Steven L. Schooner

GW Law Faculty Publications & Other Works

As the climate crisis accelerates and governments aspire to achieve more circular economies, this article encourages experimentation with innovative, interdisciplinary, and sustainable approaches that exploit governments’ enormous spending power. Rather than waiting for legislative or regulatory changes, the article advocates driving sustainable public procurement (SPP) through efficient and available behavioral-economics-inspired “green defaults,” nudging, persuading procurement officials, and, more broadly, rethinking the value proposition when confronted with price premiums.

Emerging Policy And Practice Issues (2022), Steven L. Schooner, David J. Berteau

GW Law Faculty Publications & Other Works

This paper/chapter, presented at the Thomson Reuters Government Contracts Year in Review Conference (covering 2022), attempts to identify some the leading, evolving trends and issues in U.S. federal procurement. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement (and grant) and defense spending trends and attempts to predict what lies ahead, particularly with regard to legislative and executive activity. This year's chapter begins with a cautionary note about the federal debt ceiling and discusses, among other things, the flurry of regulatory activity in the public procurement sphere as the Biden administration accelerates efforts to restore and …

Transformational Procurement—The Past And Future Of Global And Local Public Purchasing—Views From The Expert Community On What Public Money Did And Will Still Need To Buy, Steven L. Schooner, Gustavo Piga

GW Law Faculty Publications & Other Works

This short piece discusses a (rather informal) survey of approximately two dozen public procurement experts (including University professors, consultants, national regulators, multilateral development bank members, and lawyers; all chosen primarily based upon their prior dealings with Professor Piga). The survey looks back (or, in other words, at where we've been) and forward (or, in other words, where we're going.) The results of the survey were originally presented at the Global Revolution XI Conference at the University of Nottingham in June of 2022.

Emerging Policy And Practice Issues (2021), Steven L. Schooner, David Berteau

GW Law Faculty Publications & Other Works

This paper/chapter, presented at the Thomson Reuters Government Contracts Year in Review Conference (covering 2021), attempts to identify some the leading, evolving trends and issues in U.S. federal procurement. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement (and grant) and defense spending trends and attempts to predict what lies ahead, particularly with regard to legislative and executive activity. This year's paper discusses, among other things, the flurry of activity in the public procurement sphere as the Biden administration accelerates efforts to restore and reshape the government, special emergency procurement authorities deployed during the coronavirus pandemic, …

Emerging Policy And Practice Issues (2020), Steven L. Schooner, David J. Berteau

GW Law Faculty Publications & Other Works

This paper/chapter, presented at the Thomson Reuters Government Contracts Year in Review Conference (covering 2020), attempts to identify the key evolving trends and issues in U.S. federal procurement for 2020-2021 and beyond. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement (and grant) and defense spending trends and attempts to predict what lies ahead, particularly with regard to legislative and executive activity. This year's paper discusses, among other things, special emergency procurement authorities deployed during the coronavirus pandemic, the high degree of uncertainty currently being experienced in the public procurement sphere as the Biden administration begins, …

The Government Contracts Reference Book: A Comprehensive Guide To The Language Of Procurement, Ralph C. Nash, Steven L. Schooner, Karen R. O'Brien-Debakey, Vernon J. Edwards

GW Law Faculty Publications & Other Works

This book - first published in 1992 and now in its fifth edition - is intended to offer concise, comprehensive information to the practitioner of the art of government contracting. Looking up a key term, the reader can find a definition, followed by a summary of where the term is used in the statutes or regulations dealing with the procurement process. The book also includes references to literature where the term is more fully discussed. The book is not designed as a standalone encyclopedia: it is a first reference, pointing the user to additional sources as needed. The book makes …

Sustainable Procurement: Building Vocabulary To Accelerate The Federal Procurement Conversation, Steven L. Schooner, Evan Matsuda

GW Law Faculty Publications & Other Works

To the extent that the federal procurement process features prominently in the Government’s plan to slow the pace of, and adapt to the effects of, climate change, this paper attempts to provide some basic building blocks for acquisition professionals to practice sustainable procurement. The paper offers a list of key sustainable procurement vocabulary and introduces a number of key concepts so that the acquisition community can build a common body of knowledge (BOK) to accelerate its progress up the learning curve of sustainable procurement implementation. The paper also highlights a number of existing tools and resources to help translate those …

No Time To Waste: Embracing Sustainable Procurement To Mitigate The Accelerating Climate Crisis, Steven L. Schooner

GW Law Faculty Publications & Other Works

Procurement professionals will increasingly be asked to play an important role in adapting to and mitigating the effects of climate change. Unfortunately, we don't have time to waste, either feeling hopeless or waiting for changes to the Federal Acquisition Regulation (FAR) and subsequent efforts to implement new regulations. The time to start progressing up the learning curve is now. We need to talk - seriously, thoughtfully - about climate change and sustainable procurement, particularly early in the acquisition planning process. We need to rethink the value proposition, particularly with regard to factoring in the social costs of continuing to rely …

Emerging Policy And Practice Issues (2019), Steven L. Schooner

GW Law Faculty Publications & Other Works

This paper/chapter, presented at the Thomson Reuters Government Contracts Year in Review Conference (covering 2019), attempts to identify the key evolving trends and issues in U.S. federal procurement for 2019-2020 and beyond. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement and defense spending trends and attempts to predict what lies ahead, particularly with regard to legislative and executive activity. This year's paper discusses, among other things, the high degree of uncertainty currently being experienced in the public procurement sphere, dramatic increases to the micro-purchase and simplified acquisition thresholds, the work of the Congressionally-mandated Section 809 …

‘Warming Up’ To Sustainable Procurement, Steven L. Schooner, Markus Speidel

GW Law Faculty Publications & Other Works

Procurement professionals will play a critical role in the belated but necessary effort to slow the pace of climate change. That critical, evolved role will lie in sustainable procurement, which, if effectively implemented, will dramatically alter markets and fundamentally change purchasing behaviors. To be effective, procurement professionals will need to rethink how we define our profession, assess our outcomes, and bring value to our government customers. Successfully establishing a sustainable procurement regime will require dramatic change, including, among other things, overcoming the persistent tyranny of low price, understanding and adopting lifecycle costing, considering externalities in the value proposition, and, of …

Brand Name Or Equal: Without "Equal," It's Not Competitive, Steven L. Schooner

GW Law Faculty Publications & Other Works

One of the more common rules in federal government procurement is that the Government may describe its needs to the private sector by specifying a “brand name” product, as long as the Government adds the words “or equal” to the brand name and articulates the product’s salient physical, functional, or performance characteristics that are essential to the Government’s needs. This broadens the potential for competition and helps reduce the government's reliance on unduly restrictive specifications.

Two recent examples - one the subject of a GAO bid protest decision, the other a recently posted commercial-item procurement - suggest that, while some …

Emerging Policy And Practice Issues (2016), Steven L. Schooner, Neal J. Couture

GW Law Faculty Publications & Other Works

This paper, presented at the West Government Contracts Year in Review Conference (covering 2015), attempts to identify the key trends and issues in U.S. federal procurement. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement, grant, and defense spending trends and attempts to predict what lies ahead, particularly with regard to legislative and executive activity. The paper discusses, in addition to the macro-level data, initiatives from OFPP and DoD, including the Better Buying Power 3.0's less-than-obvious focus on innovation, the need for investment in research and development, information technology and category management, acquisition performance measurement (or …

Emerging Policy And Practice Issues (2015), Steven L. Schooner

GW Law Faculty Publications & Other Works

This paper, presented at the West Government Contracts Year in Review Conference (covering 2014), attempts to identify the key trends and issues in U.S. federal procurement for 2014. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement, grant, and defense spending trends and attempts to predict what lies ahead, particularly with regard to legislative and executive activity (which, this year, was highlighted by Executive Order activity). The paper discusses, in addition to data, changes to OFPP and DoD leadership and the continued Defense Department Better Buying Power Initiative (now in version 3.0) and acquisition performance measurement …

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 …

Gifts, Hospitality & The Government Contractor, Jessica Tillipman

GW Law Faculty Publications & Other Works

The government procurement process demands the highest commitment to ethical and unbiased conduct. To ensure that the individuals involved in the procurement process adhere to these standards, government entities in nearly all jurisdictions around the world have enacted codes of conduct, ethical restrictions, and anti-corruption laws designed to protect the integrity of government and ensure that government officials act impartially and do not give preferential treatment to any private organization or individual. To further these goals, most jurisdictions have enacted restrictions on the gifts and hospitality that government officials may accept from individuals and organizations that sell goods and services …

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, …

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 …

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 …

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 …

Foreign Corrupt Practices Act Fundamentals, Jessica Tillipman

GW Law Faculty Publications & Other Works

Foreign Corrupt Practices Act (FCPA) enforcement activity is currently at its highest level since enactment of the statute in 1977. There were more enforcement actions brought in 2007 than in the years from 2004 to 2006 combined. The message is clear - the U.S. Government is committed to FCPA compliance and there is no evidence enforcement activity will slow any time soon. This article provides a general overview of the FCPA, including a primer on the legislation’s core components: the antibribery prohibitions and the books and records provisions. The article also provides practical guidance with respect to the more challenging …

Public Law Values In A Privatized World, Laura T. Dickinson

GW Law Faculty Publications & Other Works

Although domestic administrative law scholars have long debated privatization within the US, this debate has not confronted the growing phenomenon of privatization in the international realm or its impact on the values embodied in public international law. Yet, with both nation-states and international organizations increasingly privatizing foreign affairs functions, privatization is now as significant a phenomenon internationally as it is domestically. For example, states are turning to private actors to perform core military, foreign aid, and diplomatic functions. Military privatization entered the popular consciousness in 2004, when private contractors working for the US government abused detainees at Abu Ghraib prison …

Government For Hire: Privatizing Foreign Affairs And The Problem Of Accountability Under International Law, Laura T. Dickinson

GW Law Faculty Publications & Other Works

Although the privatization of governmental functions has long since become a fixture of the American political landscape and has engendered a rich scholarly debate among domestic administrative law scholars, far less attention has been paid to the simultaneous privatization of what might be called the foreign affairs functions of government. Yet privatization is as significant in the international realm as it is domestically. The United States and other countries now regularly rely on private parties to provide all forms of foreign aid, to perform once sacrosanct diplomatic tasks such as peace negotiations, and even to undertake a wide variety of …