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Full-Text Articles in Government Contracts
The Four Into One Platform: New Reform Initiatives Compound China's Dissected Public Procurement Governance, Daniel J. Mitterhoff
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 …
Reflections On The Federal Procurement Landscape, Daniel I. Gordon
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 …
Dead Contractors: The Un-Examined Effect Of Surrogates On The Public’S Casualty Sensitivity, Steven L. Schooner, Collin D. Swan
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 …
A Random Walk: The Federal Circuit’S 2010 Government Contracts Decisions, Steven L. Schooner
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 …
A Versatile Prism: Assessing Procurement Law Through The Principal-Agent Model, Christopher R. Yukins
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 (2009), Steven L. Schooner, David J. Berteau
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
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.
Emerging Policy And Practice Issues (2008), Steven L. Schooner, David J. Berteau
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
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. …
Public Procurement Systems: Unpacking Stakeholder Aspirations And Expectations, Steven L. Schooner, Daniel I. Gordon, Jessica L. Clark
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 …
Too Dependent On Contractors? Minimum Standards For Responsible Governance, Steven L. Schooner, Daniel S. Greenspahn
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 …
Incrementalism: Eroding The Impediments To A Global Public Procurement Market, Christopher R. Yukins, Steven L. Schooner
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 …
Constructing A Bid Protest Process: Choices Every Procurement Challenge System Must Make, Daniel I. Gordon
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
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 Wto Agreement On Government Procurement And The Uncitral Model Procurement Law: A View From Outside The Region, John Linarelli
The Wto Agreement On Government Procurement And The Uncitral Model Procurement Law: A View From Outside The Region, John Linarelli
Scholarly Works
Two of the most significant efforts to bring municipal procurement institutions up to international standards are the WTO Agreement on Government Procurement (GPA) and the UNCITRAL Model Law on Procurement of Goods, Construction and Services. Though the Model Law has had limited adoptions, it enjoys global influence as a source of norms and practices for good public procurement. The GPA, also reflective of international standards, seems to be on the rise, as more WTO members elect to become GPA contracting parties. This article explores two aspects of these instruments. First, the article explores how the Model Law promotes efficient public …
Organizational Conflicts Of Interest: A Growing Integrity Challenge, Daniel I. Gordon
Organizational Conflicts Of Interest: A Growing Integrity Challenge, Daniel I. Gordon
GW Law Faculty Publications & Other Works
Recent experience in the United States suggests that public procurement professionals increasingly encounter a particular kind of conflict of interest, organizational conflicts of interest (OCIs). OCIs arise in situations where an entity plays two or more roles that are, in some sense, at odds with one another. This article endeavors to set out some points for consideration in this increasingly important area. Alleged OCIs have been identified in various activities of the U.S. federal procurement process, from contracts for security services in Iraq to public/private competitions for work to be performed in the U.S. This article first suggests reasons for …
Katrina's Continuing Impact On Procurement - Emergency Procurement Powers In H.R. 3766, Christopher R. Yukins, Joshua I. Schwartz
Katrina's Continuing Impact On Procurement - Emergency Procurement Powers In H.R. 3766, Christopher R. Yukins, Joshua I. Schwartz
GW Law Faculty Publications & Other Works
As Hurricane Katrina relief efforts grow into the billions of dollars, the U.S. Congress is considering additional legislation to liberalize procurement, including H.R. 3766, co-sponsored by Representatives Kenny Marchant and Tom Davis. In these comments on the proposed legislation, Professors Christopher Yukins and Joshua Schwartz asked whether the proposed changes, which would eviscerate competition for most procurement related to disaster relief, are truly necessary. Professor Yukins suggests that, though it might in some circumstances be necessary to dismantle the federal regulatory regime to accommodate a wave of new firms in the federal market, there is too little evidence yet to …
Hurricane Katrina's Tangled Impact On U.S. Procurement, Christopher R. Yukins
Hurricane Katrina's Tangled Impact On U.S. Procurement, Christopher R. Yukins
GW Law Faculty Publications & Other Works
In the wake of Hurricane Katrina, the U.S. Congress passed new exceptions to U.S. procurement rules. The most important new exception, passed at the recommendation of the Bush administration, raised the limit for micro-purchases - essentially unregulated purchases - from $2,500 to $250,000. In practice, this will mean that Katrina relief purchases may be made, up to $250,000 per order, without any effective transparency or competition, and without honoring the many socioeconomic requirements that are an important part of the U.S. procurement system. This comment reviews that emergency legislation, and suggests that the new law, by abandoning basic principles of …
Contractor Atrocities At Abu Ghraib: Compromised Accountability In A Streamlined, Outsourced Government, Steven L. Schooner
Contractor Atrocities At Abu Ghraib: Compromised Accountability In A Streamlined, Outsourced Government, Steven L. Schooner
GW Law Faculty Publications & Other Works
Staggering numbers of contractor personnel have supported, and continue to support, American combat and peace-keeping troops and the government's Herculean reconstruction efforts in Iraq. Yet recent experiences in Iraq, particularly allegations that contractor personnel were involved in inappropriate and potentially illegal activities at the Abu Ghraib prison, expose numerous areas of concern with regard to the current state of federal public procurement. Sadly, because these incidents coincide with a series of procurement scandals, the likes of which the government has not experienced since the late 1980's, they cannot be dismissed so easily as anomalies.
The Abu Ghraib abuses suggest at …
Commentary On The Acquisition Workforce, Steven L. Schooner, Christopher R. Yukins
Commentary On The Acquisition Workforce, Steven L. Schooner, Christopher R. Yukins
GW Law Faculty Publications & Other Works
Recognizing the need to focus on the strategic management of the federal acquisition workforce, the Office of Federal Procurement Policy (OFPP) promulgated Policy Letter 05-01, Developing and Managing the Acquisition Workforce. These two brief pieces discuss the policy letter and what it signals to the acquisition community. The first, Empty Promise for the Acquisition Workforce, concludes that, although the letter's title optimistically heralded a bold step forward, OFPP both aimed too low and missed the mark. The letter attempted to redefine cosmetically the acquisition workforce and describe how a portion of this deputized acquisition workforce should be trained. While the …
Competitive Sourcing Policy: More Sail Than Rudder, Steven L. Schooner
Competitive Sourcing Policy: More Sail Than Rudder, Steven L. Schooner
GW Law Faculty Publications & Other Works
This essay predicts that the Bush administration's competitive sourcing initiative will fail. Granted, the number of government employees will continue to shrink, while the number of contractor personnel serving the Government will methodically increase. But the Government's unwillingness to appreciate the policy's costs leads to the corresponding failure to identify, obtain, and invest appropriate resources needed to properly effectuate the policy. The Government simply lacks sufficient qualified acquisition, contract management, and quality control personnel to handle the outsourcing burden. Because the Government is ill-positioned to successfully out-source in a manner that generates higher quality services, lower prices, greater efficiency, or, …
Commercial Purchasing: The Chasm Between The United States Government's Evolving Policy And Practice, Steven L. Schooner
Commercial Purchasing: The Chasm Between The United States Government's Evolving Policy And Practice, Steven L. Schooner
GW Law Faculty Publications & Other Works
During the 1990's, the United States government accelerated its efforts to adopt more commercial practices and buy more commercial items. In doing so, the government sought to: (1) mimic the most successful buying practices of businesses and consumers and (2) rely more heavily upon existing goods and services already produced in the marketplace (rather than demanding creation of government-unique versions). This paper introduces the government's efforts to make its purchasing regime more commercial through the introduction of new policies, vocabulary, purchasing authorities, and practices. The paper unveils a host of impediments that restrain the government from evolving into a truly …
Model Behaviour? Anecdotal Evidence Of Tension Between Evolving Commercial Public Procurement Practices And Trade Policy, Steven L. Schooner, Christopher R. Yukins
Model Behaviour? Anecdotal Evidence Of Tension Between Evolving Commercial Public Procurement Practices And Trade Policy, Steven L. Schooner, Christopher R. Yukins
GW Law Faculty Publications & Other Works
The international trade community increasingly focuses upon the purchasing practices of nation states. Developing nations and states seeking to improve their procurement systems expect to glean lessons from the evolution of procurement law regimes in developed nations, including the United States. To the extent that the U.S. procurement regime is perceived (at least by some) as a model, the global community has been intrigued by the United States government's efforts to adopt more commercial practices and buy more commercial items. Yet numerous impediments to a purely commercial public procurement model remain, because commercial practices are invariably less transparent, and raise …
A Modest Proposal To Enhance Civil/Military Integration: Rethinking The Renegotiation Regime As A Regulatory Mechanism To Decriminalize Cost, Pricing, And Profit Policy, William E. Kovacic, Steven L. Schooner
A Modest Proposal To Enhance Civil/Military Integration: Rethinking The Renegotiation Regime As A Regulatory Mechanism To Decriminalize Cost, Pricing, And Profit Policy, William E. Kovacic, Steven L. Schooner
GW Law Faculty Publications & Other Works
Neither Congress, the procuring agencies, the media, nor the public will condone government contractors reaping what are perceived as excessive profits. Accordingly, the procurement process employs an unduly complex, burdensome, risk-laden, and ineffective mechanism that erects significant barriers to civil/military integration. This paper (presented at the 1999 Defense Systems Management College (DSMC) Acquisition Research Symposium) examines certain policy implications associated with the Truth In Negotiations Act (TINA), the existing audit regime, and the use of criminal and civil anti-fraud measures to scrutinize deviations from these complex cost, pricing, and profit policies and controls. It re-visits the long-extinct Renegotiation Act and …