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 …

A Transatlantic Analysis Of Eu And U.S. Strategies In “Green Procurement", Marta Andhov, Christopher R. Yukins

GW Law Faculty Publications & Other Works

As governments the world over move to reduce global warming, public procurement has become an increasingly important means of leveraging governments’ vast purchasing power to reduce greenhouse gas (GHG) emissions through “green” or environmentally sustainable procurement. This article reviews emerging strategies in green procurement in the European Union and the United States. The article notes that those green procurement strategies are remarkably consistent on both sides of the Atlantic, from sector-specific preferences for low-carbon products to eco-labels to life-cycle cost analyses which take into account broader environmental impacts. On both sides of the Atlantic, however, parallel problems have emerged as …

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 …

Confronting State Violence: Lessons From India's Farmer Protests, Smita Narula

Elisabeth Haub School of Law Faculty Publications

In December 2021, following a year of sustained mass protests, farmers in India forced the repeal of three controversial Farm Laws that attempted to deregulate India’s agricultural sector in service of corporate interests. Farmers feared that the laws would dismantle price supports for key crops, jeopardize their livelihoods, and facilitate a corporate takeover of India’s agrarian economy. This Article situates India’s historic farmer protests in the context of the country’s longstanding agrarian crisis and the corporate capture of agriculture worldwide. I argue that the protests arose in response not only to the Farm Laws, but also to decades of state-sponsored …

Government By Code? Blockchain Applications To Public Sector Governance, Pedro Bustamante, Meina Cai, Marcela Gomez, Colin Harris, Prashabnt Krishnamurthy, Wilson Law, Michael J. Madison, Ilia Murtazashvili, Jennifer Brick Murtazashvili, Tymofiy Mylovanov, Nataliia Shapoval, Annette Vee, Martin B. H. Weiss

Articles

Studies of blockchain governance can be divided into analyses of the governance of blockchains (such as rules and power dynamics within a given network) and governance by blockchains (such as how blockchains can be implemented to improve self-governance of community-based peer production networks). Less emphasis has been placed on applications of distributed ledgers to public sector governance. Our review clarifies that the decentralization and distributive features that enable blockchains to link up loosely connected private organizations and public agencies to improve efficiency and transparency of government transactions. However, most blockchain applications lack clear advantages over the conventional digital recording of …

The Uncitral Model Law On Public Procurement: Potential Next Steps, Christopher R. Yukins, Caroline Nicholas

GW Law Faculty Publications & Other Works

The current version of the Model Law on Public Procurement was approved by the United Nations Commission on International Trade Law (UNCITRAL) in 2011, after a drafting process which spanned nearly a decade. This version of the Model Law reflects best practices which were emerging in procurement systems across the world during the first decade of this century. There have been calls for an update of the Model Law, and this draft chapter, after reviewing the history of the Model Law and the reforms which led to the current version, discusses various reforms which might be made to the text …

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 …

Smart Surfaces, Smart Cities: Reducing Heat And Promoting Equity In Urban Areas, Hillary Aidun

Sabin Center for Climate Change Law

The summer of 2021 underscored that we are all affected by climate change impacts, whether in the form of heatwaves, fires, or extreme flooding. But some Americans are far more affected than others. Urban centers are hotter than rural areas due to urban heat island effect, a phenomenon caused by pavement, buildings, and other surfaces in cities that absorb and retain heat. In the United States, urban heat island effect results in a temperature difference of up to 7. degrees between cities and their surrounding rural areas. Moreover, within cities, extreme heat disproportionately harms communities of color and low-income communities. …

Us Debarment: An Introduction, John Pachter, Christopher R. Yukins, Jessica Tillipman

GW Law Faculty Publications & Other Works

Disclaimer: This chapter has been published in The Cambridge Handbook of Compliance edited by Benjamin van Rooij and D. Daniel Sokol (2021), https://doi.org/10.1017/9781108759458. This version is free to view and download for private research and study only. Not for re-distribution or re-use. Copyright John Pachter, Christopher Yukins & Jessica Tillipman.

This chapter, cowritten by senior members of the bar who teach in the leading public procurement law program in the United States, discusses corruption, compliance, and debarment in government procurement. When a government procures goods or services, it must decide questions of price and quality, and – equally importantly – …

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 …

Covid-19: Lessons Learned In Public Procurement. Time For A New Normal?, Laurence Folliot Lallion, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The COVID-19 crisis upended markets and assumptions in public procurement, and posed an almost existential threat to traditional procurement systems. Seismic changes in economic relationships – governments were no longer monopsonists, government officials failed as economic intermediaries between suppliers and the public, and supplies that were traditionally treated as private (such as medical equipment) suddenly became “public” goods under worldwide demand. Traditional trade rules were rendered irrelevant, as the goal was no longer simply to open individual procurements but rather to open borders to intense global demand. Although the disruption was revolutionary, ironically the solution is to return to first …

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.

Withdrawing The United States From The Wto Government Procurement Agreement (Gpa): Assessing Potential Damage To The U.S. And Its Contracting Community, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The Trump administration is mulling an executive order that would trigger U.S. withdrawal from the WTO Agreement on Government Procurement (GPA), according to reports from Bloomberg and POLITICO. Withdrawal from the GPA would deprive U.S. suppliers of a key point of access to public procurement markets internationally, under a world-wide agreement which has set global standards and opened over a trillion dollars annually in business opportunities. See, e.g., Anderson et al., “Assessing the Value of Future Accessions to the WTO Agreement on Government Procurement (GPA): Some New Data Sources, Provisional Estimates, and An Evaluative Framework for Individual WTO Members Considering …

Covid-19: Lessons Learned In Public Procurement. Time For A New Normal?, Laurence Folliot Lalliot, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The COVID-19 crisis upended markets and assumptions in public procurement, and posed an almost existential threat to traditional procurement systems. Seismic changes in economic relationships – governments were no longer monopsonists, government officials failed as economic intermediaries between suppliers and the public, and supplies that were traditionally treated as private (such as medical equipment) suddenly became “public” goods under worldwide demand. Traditional trade rules were rendered irrelevant, as the goal was no longer simply to open individual procurements but rather to open borders to intense global demand. Although the disruption was revolutionary, ironically the solution is to return to first …

Dawn Of The Intercontinental Sniper: The Drone's Cascading Contribution To The Modern Battlefield's Complexity: A Re-View Essay Of Predator: The Secret Origins Of The Drone Revolution, By Richard Whittle, Steven L. Schooner, Nathaniel E. Castellano

GW Law Faculty Publications & Other Works

This review essay discusses a unique book that chronicles the UAV (unmanned aerial vehicle) or "drone" revolution with a focus on the Predator weapon system. Although brought to market by a mainstream publisher, the book offers a thought-provoking, heavily researched, non-fiction case study involving national security, defense acquisition, and international law. We congratulate author Richard Whittle for crafting a thrilling and highly informative history of technological innovation, government contracting, and weapons system development and deployment, while introducing complex issues of national security and international law, that nonetheless left us eagerly anticipating a forthcoming action movie.

This review essay introduces prospective …

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 …

The Four Into One Platform: New Reform Initiatives Compound China's Dissected Public Procurement Governance, Daniel J. Mitterhoff

Faculty Scholarship

For over ten years now, supervision and implementation of public purchasing activities in China has largely been divided among government agencies that jealously guard their share of their regulatory pie and covet the regulatory province of other agencies. Yet vested interests are now on the defensive, as a reform process seeks to collapse the segregated regulatory regimes into a more centralized governance structure. The idea is to combine construction tendering and bidding, government procurement, public land-use auctions and public asset exchanges under one management structure called the “Public Resources Exchange Center.” Hence, some refer to the reforms as the “four …

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 …

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 …

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 …

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. …

Too Dependent On Contractors? Minimum Standards For Responsible Governance, Steven L. Schooner, Daniel S. Greenspahn

GW Law Faculty Publications & Other Works

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 …

Public Procurement Systems: Unpacking Stakeholder Aspirations And Expectations, Steven L. Schooner, Daniel I. Gordon, Jessica L. Clark

GW Law Faculty Publications & Other Works

Around the world, governments are increasingly becoming focused on improving their public procurement regimes. Significant developments include the establishment of internationally shared norms for public procurement systems, while, at the national level, a number of countries have adopted dramatically new public procurement regimes, and others are experimenting with new procurement vehicles, such as framework agreements and electronic reverse auctions, and new procurement schemes, including public-private partnerships. As each of these changes is contemplated, planned, implemented, and then assessed, government leaders and policy makers need a framework of analysis for decision making - a framework based on public procurement goals and …

Incrementalism: Eroding The Impediments To A Global Public Procurement Market, Christopher R. Yukins, Steven L. Schooner

GW Law Faculty Publications & Other Works

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 …