Law Commons^™

Why Sustainable Procurement? Read All About It, Steven L. Schooner

GW Law Faculty Publications & Other Works

As procurement professionals (knowingly or unknowingly) await regulations promulgated in an effort to adapt to and mitigate climate change, significant opportunities exist within current federal regulations and policy to affect change. For now, the burden to stimulate innovation falls upon procurement professionals, individually, and collectively. In that context, information is power. What better place to start than with a good book?

With an eye towards informing productive conversations across the federal acquisition community about evolving expectations, practices, and policies in sustainable procurement, this article suggests some reading from the massive and diverse body of work related to climate change.

This …

Food Procurement: An Essential Ingredient To Mitigating Climate Change And Enhancing Public Health, Chloë Waterman, Rachel Clark, Steven L. Schooner

GW Law Faculty Publications & Other Works

This short article addresses a critical, but often underappreciated, aspect of the evolving suite of efforts to reduce greenhouse gas (GHG) emissions: food and agriculture systems, which account for at least a quarter of GHG emissions and more methane emissions than any other sector. The article invites government leadership to become more intentional in focusing on sustainable food procurement as a key strategy to mitigate climate change. The authors argue that public food procurement can – and should – be leveraged to generate a wide range of cascading social benefits beyond mitigating climate change and improving public health, including worker …

Deploying The Wto Agreement On Government Procurement (Gpa) To Enhance Sustainability And Accelerate Climate Change Mitigation, Robert D. Anderson, Antonella Salgueiro, Steven L. Schooner, Marc Steiner

GW Law Faculty Publications & Other Works

Mitigating climate change and promoting sustainability are defining challenges of our time. Public procurement has a vital role to play in responding to the current crises. This article makes the case that the World Trade Organization’s (WTO) Agreement on Government Procurement (GPA), and specifically the Work Programme on Sustainable Procurement that has been initiated pursuant to the Agreement, can serve as important instruments to promote sustainable approaches to public procurement internationally, consistent with the goals of climate change mitigation.

The Work Programme, which was established at the time of the GPA’s modernization in 2012 and on which important work has …

Leveraging The Federal Government’S Buying Power To Mitigate Climate Change, Polly Hall, Tim Cooke, Steven L. Schooner

GW Law Faculty Publications & Other Works

As global temperatures continue to rise, this brief article focuses on the evolution of sustainable public procurement (primarily in the United States federal or central government marketplace).

Among other things, the article introduces expanding efforts by the National Contract Management Association (NCMA) and its community of practice (COP) to raise awareness of the procurement profession's and community's role in adapting to and mitigating climate change, support knowledge sharing about existing work in this area, provide resources and training to contracting professionals, and integrate sustainability into contracting professional standards. Ultimately, what procurement officials buy, how they buy, and who they buy …

Mckinsey & Company’S Conduct And Conflicts At The Heart Of The Opioid Epidemic, Hearing Before The House Committee On Oversight And Reform, Jessica Tillipman

GW Law Faculty Publications & Other Works

On April 27, 2022, Jessica Tillipman, Assistant Dean for Government Procurement Law Studies at The George Washington University Law School testified before the House Committee on Oversight and Reform regarding McKinsey & Company's potential Organizational Conflict of Interest between its contracts with the Food & Drug Administration (FDA) and its commercial, opioid manufacturer clients. Her testimony addressed the longstanding need to update and clarify the current legal framework governing Organizational Conflicts of Interest (OCIs) in the Federal Acquisition Regulation (FAR) and the importance of government contractors maintaining strong internal ethics and compliance programs.

Canada's Integrity Regime: The Corporate Grim Reaper, Jessica Tillipman, Samantha Block

GW Law Faculty Publications & Other Works

In 2019, SNC-Lavalin made global headlines after it was revealed that the Canadian Prime Minister, Justin Trudeau, had interfered in the prosecution of the company for the bribery of Libyan officials. Although the scandal was primarily viewed as political, it also highlighted flaws in Canada’s Integrity Regime; specifically, the regime’s unworkable and draconian approach to debarment. This Article will address the pressing need in Canada to modify its debarment remedy and enact a system that more effectively protects the government’s interests. To illuminate the current issues facing Canada’s Integrity Regime, this Article will begin by examining Canada’s debarment system, outlining …

Organizational Conflicts Of Interest: Cautionary Tales, Jessica Tillipman

GW Law Faculty Publications & Other Works

A recent, high-profile investigation involving McKinsey & Company (McKinsey) and its contracts with the Food and Drug Administration (FDA) has reminded us that organizational conflicts of interest (OCIs) are an integrity issue that never should be written off as a check-the-box exercise during the procurement process. This incident highlighted the need to address critical gaps in this area of the law. This article appeared in the August 2022 issue of Contract Management magazine published by the National Contract Management Association. Used with permission.

Using Ai To Reduce Performance Risk In U.S. Procurement, Jessica Tillipman

GW Law Faculty Publications & Other Works

In recent years, several U.S. government agencies have pioneered the use of artificial intelligence (AI) and other emerging technologies to improve the efficiency and accuracy of their "responsibility determinations" (reviews of, among other things, contractor representations and certifications, past performance history, civil and criminal settlements, exclusions (such as suspensions or debarments), and contract terminations). As federal agencies continue to think strategically about how to improve processes and reduce risk in their procurements, technology-driven solutions will play a critical role in this undertaking.

Strange Bedfellows? Representative Democracy And Academic Engagement With The Defense Industry, Steven L. Schooner, Evan Matsuda

GW Law Faculty Publications & Other Works

This chapter concludes a book that grew out of 2015 a conference hosted by the University of Pennsylvania's Center for Ethics and the Rule of Law, which brought together defense industry leaders, academics, and lawyers to discuss ethical challenges to the defense industry. Authors from the academy, practitioners, and policy-makers offer perspectives and insights such that the collection spans a broad range of disciplines, from philosophy, economics, law, and political science, to the management of corporate compliance.

In addition to attempting (no doubt unsuccessfully) to tie many of the book's themes together, the chapter itself asserts that the academic community …

Graduate Level Distance Learning: Enhanced Student Experience, Significant Scalability Challenges: A Multiyear Case Study, Karen Thornton, Steven L. Schooner, Markus Speidel

GW Law Faculty Publications & Other Works

This article describes our experiences and "lessons learned" providing degree-based distance (online) education to graduate students (studying business, law, and policy related to government contracts or public procurement). Temporal note: our pilot, and the five years of experience described in this case study, predate the 2020 Coronavirus Pandemic emergency distance teaching transition.

Among other things, we discuss our experiences with regard to fundamentally rethinking our pedagogical approach, "flipping the classroom," chunking, and scaffolded learning. We extol the benefits of working with, and being open to, advice from experienced instructional designers.

We conclude that embracing distance education, at least in a …

Enhanced Debriefings: A Toothless Mandate?, Steven L. Schooner

GW Law Faculty Publications & Other Works

This short piece discusses the (alleged) manner in which the Department of Defense (DoD) conducted the disappointed offeror's post-award debriefing following the award of the $10 billion, $10-year Joint Enterprise Defense Infrastructure (JEDI) cloud computing contracting opportunity. While the quality of DoD’s debriefing is unlikely to alter the outcome in the pending protest litigation, it seems inconsistent with policy, the current trend favoring greater transparency, and the recent Congressional mandate for “enhanced debriefings.”

The piece suggests that, consistent with decades of study and experience, debriefings make sense, but only if they are informative or, more to the point, responsive. Conversely, …

Postscript Ii: Enhanced Debriefings, Steven L. Schooner

GW Law Faculty Publications & Other Works

This short piece, which supplements the discussion from February 2020 (also on SSRN) discusses the Department of Defense (DoD) post-award debriefing of the disappointed offeror (Amazon) following the award (to Microsoft) of the $10 billion, $10-year Joint Enterprise Defense Infrastructure (JEDI) cloud computing contracting opportunity.

This supplemental discussion derives from the extraordinary, 300+ page, DoD Inspector General review and report on the procurement (issued in April 2020) and highlights a number of the surprises in the IG report, including: DoD's assertion of a “presidential communications privilege” to avoid responding to inquiries related to alleged White House influence of the procurement; …

Look Up And Around: Musings On Mentors, Role Models, And Professionalism (Revised And Updated), Steven L. Schooner

GW Law Faculty Publications & Other Works

As part of Contract Management magazine's 2020 Professional Development issue, this (revised and updated) article offers a rather simple overarching suggestion for successful professionals and future leaders: look up and around. The article encourages readers to identify mentors, embrace the strengths of their role models, and open themselves up to learn from others, evolve, and grow. The article discusses, among other things, education, networking, professional development (and, of course, writing), and the power of optimism.

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 …

Review Essay: Reading The Dream Machine: The Untold Story Of The Notorious V-22 Osprey, By Richard Whittle, In Light Of The Defense Acquisition Performance Study, Steven L. Schooner, Nathaniel E. Castellano

GW Law Faculty Publications & Other Works

This review commends The Dream Machine to a broad range of readers, including public contracts attorneys, acquisition policy officials, contracts professionals, program managers, government procurement law students, as well as consumers of military history. It’s a remarkable story told with style. The review juxtapose some aspects of the author’s exhaustive case study of this seemingly problematic program against the Defense Department’s nascent effort to assess the performance of the Defense Acquisition System. We make no secret of our belief that DoD’s acquisition performance assessment has the potential to become one of the most significant recent developments in defense acquisition. Among …

Book Review: The Invisible Soldiers: How America Outsourced Our Security By Ann Hagedorn, Steven L. Schooner

GW Law Faculty Publications & Other Works

This review discusses Ann Hagedorn's book, which addresses the post-millennial proliferation of arms-bearing contractors that has roiled the human rights community and catalyzed a global conversation about the nature and future of modern warfare. Hagedorn’s perspective and insights on arms bearing contractors, democracies, and empires—intensely personal, yet thoughtfully cognizant of policy, political theory, and philosophy—should interest readers new to the field, as well as those well versed in the issues. Outsourcing the use of force is sufficiently important to the future of democratic states that this book—as well as the growing corpus of literature it adds to—merits serious contemplation.

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 …

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 …

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 …

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 …

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 …

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 …

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 …

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. …

Constructing A Bid Protest Process: Choices Every Procurement Challenge System Must Make, Daniel I. Gordon

GW Law Faculty Publications & Other Works

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 …

Emerging Policy And Practice Issues (2005), Steven L. Schooner, Christopher R. Yukins

GW Law Faculty Publications & Other Works

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 …

The Breakdown Of The United States Government Purchase Card Program And Proposals For Reform, Jessica Tillipman

GW Law Faculty Publications & Other Works

The Government Purchase Card Program introduced purchase cards to streamline the acquisition of items and services under $2,500. Purchase cards have proved to be extremely efficient, with some estimates putting the savings for the Government at $75 per transaction. Unfortunately, the Government has failed to maintain effective controls over cardholders and this has led to systemic abuse, preventing the Government from realizing the full potential of the purchase card program.

There are three main problems with the current scheme. First, cardholders are ignoring internal controls, resulting in purchases that supervisors cannot verify as consistent with procurement regulations. Second, the proliferation …