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Articles 31 - 60 of 62
Full-Text Articles in Government Contracts
Foreign Corrupt Practices Act Fundamentals, Jessica Tillipman
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 …
Why Contractor Fatalities Matter, Steven L. Schooner
Why Contractor Fatalities Matter, Steven L. Schooner
GW Law Faculty Publications & Other Works
At the end of July 2008, the media reported that 4,600 service members have died in Operations Iraqi Freedom and Enduring Freedom. But reporting only military fatalities understates the human cost of America's engagements in these regions by nearly a fourth. On the modern, outsourced battlefield, the U.S. government increasingly has delegated to the private sector the responsibility to stand in harm's way and, if required, die for America. As of 30 June 2008, more than 1,350 civilian contractor personnel had died in Iraq and Afghanistan, while another 29,000 contractors have been injured; more than 8,300 seriously. Nonetheless, contractor fatalities …
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 …
Emerging Policy And Practice Issues (2007), Steven L. Schooner, Danielle M. Conway
Emerging Policy And Practice Issues (2007), Steven L. Schooner, Danielle M. Conway
GW Law Faculty Publications & Other Works
This paper, presented at the West Government Contracts Year in Review Conference (covering 2007), attempts to identify the key trends and issues for 2008 in U.S. federal procurement. We bemoan the absence of attention to significant issues by the current Presidential candidates, critique the leadership vacuum that sustains the longstanding and increasingly critical acquisition workforce shortage, and discuss the potentially active legislative agenda in light of the now-Final Report of the Acquisition Advisory Panel (AAP), a blue-ribbon commission mandated by Section 1423 of the Services Acquisition Reform Act (SARA). We also discuss the dramatic post-2000 trend in increased federal procurement …
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 …
Emerging Policy And Practice Issues (2006), Steven L. Schooner, Christopher R. Yukins
Emerging Policy And Practice Issues (2006), 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 2006), attempts to identify the key trends and issues for 2007 in U.S. federal procurement. In large part, the paper discusses the Draft Final Report of the Acquisition Advisory Panel (AAP), a blue-ribbon commission mandated by Section 1423 of the Services Acquisition Reform Act (SARA). Proceeding from the simple premise that the private sector does a better job with procurement by planning carefully and employing aggressive competition, we discuss, among other things, the inaccuracies that plague the Federal Procurement Data System; the dramatic post-2000 trend in increased …
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 …
A Case Study In Comparative Procurement Law: Assessing Uncitral's Lessons For U.S. Procurement, Christopher R. Yukins
A Case Study In Comparative Procurement Law: Assessing Uncitral's Lessons For U.S. Procurement, Christopher R. Yukins
GW Law Faculty Publications & Other Works
The United Nations Commission on International Trade Law (UNCITRAL) has commissioned a working group, with delegations from many industrialized and developing nations, to reform and update the UNCITRAL Model Law on Procurement of Goods, Construction and Services. The working group is currently reviewing reforms on a number of fronts. This essay focuses on three areas of reform in particular - electronic communications, electronic reverse auctions, and unrealistically low bidding - to gauge whether lessons from the UNCITRAL debate may be useful for reform in the U.S. procurement system. As the essay reflects, the international debate surrounding UNCITRAL reform does in …
Post-Katrina Reconstruction Liability: Exposing The Inferior Risk-Bearer, Steven L. Schooner, Erin Siuda-Pfeffer
Post-Katrina Reconstruction Liability: Exposing The Inferior Risk-Bearer, Steven L. Schooner, Erin Siuda-Pfeffer
GW Law Faculty Publications & Other Works
This Article describes the doctrinal, functional, and moral flaws inherent in the Gulf Coast Recovery Act (GCRA), a United States Senate bill that would provide liability protection to government contractors engaged in disaster relief work in the areas devastated by Hurricane Katrina, as well as in future disaster areas. First, the Article discusses the history of the government contractor defense and finds that the protection provided by the GCRA is quite unlike the traditional government contractor defense. This Article further argues that this doctrinal departure cannot be justified on grounds of efficiency or fairness, as the GCRA allocates risk away …
Emerging Policy And Practice Issues (2004), Steven L. Schooner, Christopher R. Yukins
Emerging Policy And Practice Issues (2004), 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 2004), attempts to identify the key trends and issues for 2005. The paper suggests that two rather unique items merit particular attention: the Darleen Druyun saga and the plight of contractors working in Iraq. Both frame compliance issues in stark relief. At the same time, we address what we perceive as the far more vexing issue that permeates federal procurement today: the excessive reliance upon, and corresponding misuse of, task-order contracting. We also discuss procurement spending trends (and the inevitable belt-tightening that must follow); contract-related litigation trends; …
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 …
Uncitral Considers Electronic Reverse Auctions, As Comparative Public Procurement Comes Of Age In The U.S., Christopher R. Yukins, Don Wallace Jr.
Uncitral Considers Electronic Reverse Auctions, As Comparative Public Procurement Comes Of Age In The U.S., Christopher R. Yukins, Don Wallace Jr.
GW Law Faculty Publications & Other Works
This article reports on the United Nations Commission on International Trade Law (UNCITRAL) review of electronic reverse auctions in procurement systems around the world. The article describes the U.S. experience, including the stalled regulatory initiative regarding reverse auctions. Drawing on the literature and on UNCITRAL studies from procurement systems in Asia, Europe and Latin America, the article cites lessons from other nations' use of reverse auctions. In particular, the article discusses the European Union's new rule on reverse auctions, which is probably the best example, worldwide, of a careful attempt to regulate reverse auctions. The article discusses traditional questions in …
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 …
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 …
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 …
Uncitral Model Law: Reforming Electronic Procurement, Reverse Auctions, And Framework Contracts, Christopher R. Yukins, Don Wallace Jr., Jason P. Matechak
Uncitral Model Law: Reforming Electronic Procurement, Reverse Auctions, And Framework Contracts, Christopher R. Yukins, Don Wallace Jr., Jason P. Matechak
GW Law Faculty Publications & Other Works
A Working Group of the United Nations Commission on International Trade Law (UNCITRAL) is working on potential reforms to UNCITRAL's Model Procurement Law and its Guide to Enactment. This article, written by several advisors to the U.S. delegation to the UNCITRAL Working Group, reviews the Working Group's progress on several important fronts. The Working Group has reached initial consensus on a number of difficult procurement issues, including electronic commerce, reverse auctions and framework contracts, and significant progress has been made in a number or other areas, including the procurement of services, the strengthening of procurement remedies (known in the United …
Risky Business: Managing Interagency Acquisition, Steven L. Schooner
Risky Business: Managing Interagency Acquisition, Steven L. Schooner
GW Law Faculty Publications & Other Works
This brief piece applauds the Government Accountability Office (GAO) for adding the management of interagency contracting to its High Risk List. It suggests that interagency acquisition, the poster child for the flexible, streamlined, businesslike approach of the 1990's acquisition reform movement, has become the federal procurement system's Achilles heel. It recommends that the government needs more qualified professionals to proactively craft results-oriented contracts and to manage effectively contractors' performance. Finally it suggests commencing a meaningful conversation about the appropriate role of businesslike models, generally, and fees, specifically, in governance.
Making Federal Information Technology Accessible: A Case Study In Social Policy And Procurement, Christopher R. Yukins
Making Federal Information Technology Accessible: A Case Study In Social Policy And Procurement, Christopher R. Yukins
GW Law Faculty Publications & Other Works
Section 508 of the Rehabilitation Act requires that all information technology bought by the federal government be accessible to persons with disabilities. That goal, simple to state, has been enormously complex to implement. In imposing a social initiative on the procurement system, Congress has left a huge number of issues unresolved - including, most critically, who is to pay for the initiative. This article reviews the issues raised by Section 508, and traces common patterns that emerge when, as with Section 508, social goals are implemented through a large, complex, and deeply entrenched procurement system. The article traces the impact …
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, …
The Breakdown Of The United States Government Purchase Card Program And Proposals For Reform, Jessica Tillipman
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 …
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 …
Communicating Governance: Will Plain English Drafting Improve Regulation?, Steven L. Schooner
Communicating Governance: Will Plain English Drafting Improve Regulation?, Steven L. Schooner
GW Law Faculty Publications & Other Works
It should come as no surprise that the Bush administration showed little interest in adopting Vice President Gore's ambitious, high profile National Performance Review (NPR) agenda. One area, however, where the Bush administration would do well to embrace the NPR's efforts is the plain language initiative. While it would be hyperbole to suggest that the NPR's efforts dramatically improved the clarity of the government's written communication (including statutes, regulations, policies, instructions, etc.), some progress was made. Yet it will take some time before a commitment to writing in plain, clear, precise English becomes a cultural (or governmental) norm. Even though …
Fear Of Oversight: The Fundamental Failure Of Businesslike Government, Steven L. Schooner
Fear Of Oversight: The Fundamental Failure Of Businesslike Government, Steven L. Schooner
GW Law Faculty Publications & Other Works
This article discusses the National Performance Review's (NPR's) broad-reaching effort to reinvent government by making it more businesslike, focusing on its successful effort to reform the Federal procurement process. The article shows that the reformed system couples greatly increased buyer discretion with dramatically reduced oversight of government spending - both internal and external. This article asserts that this combination erodes the public's confidence in the procurement system, violates established norms, and is antithetical to a host of Congressional mandates and policies. More particularly, the article provides empirical evidence of the dramatic, sustained reduction in government contract related litigation during the …
Accounting Standards And German Supplementary Pensions: The Emerging Framework Underpinning Global Finance, Daniel I. Gordon
Accounting Standards And German Supplementary Pensions: The Emerging Framework Underpinning Global Finance, Daniel I. Gordon
GW Law Faculty Publications & Other Works
In this paper we focus on the current status of German employer-sponsored supplementary pensions in the context of moves towards the harmonization of international accounting standards. We emphasize the changing standards used to measure pension liability, and the consequences of these changes for (firstly) corporate management discretion and (secondly) German under-funded systems of defined benefit pensions. In combination, we show that claimed historical differences between the Anglo-American market for corporate control and the German system of entrenched management within interlocking boards of supervision are now less compelling than assumed. Adoption of international and US financial accounting standards by leading German …
German Social Market In The World Of Global Finance: Pension Investment Management And The Limits Of Consensual Decision Making, Daniel I. Gordon, Daniel Mansfield, Adam Tickell
German Social Market In The World Of Global Finance: Pension Investment Management And The Limits Of Consensual Decision Making, Daniel I. Gordon, Daniel Mansfield, Adam Tickell
GW Law Faculty Publications & Other Works
In a previous paper we emphasised the changing national and international accounting standards used to measure net pension liability. Beginning with the implications of this analysis for the financing of German employer-sponsored pensions, in this paper we focus upon the internal management of corporate pension assets and liabilities. Two issues drive the analysis. One has to do with the emerging coalescence of interests joining corporate management and shareholders in relation to the management of pension assets and liabilities. The second issue has to do with the allocation of risk and uncertainty between social partners when negotiating the financing and final …
The Ftca Discretionary Function Exception And Accounting Malpractice, Steven L. Schooner
The Ftca Discretionary Function Exception And Accounting Malpractice, Steven L. Schooner
GW Law Faculty Publications & Other Works
These two short pieces discuss General Dynamics Corp. v. United States, in which the Ninth Circuit reversed what appeared to be the first successful use of the Federal Torts Claims Act (FTCA) by a government contractor to pursue a professional malpractice claim against a federal agency, awarding more than $25 million in damages due to professional malpractice committed by the Defense Contract Audit Agency (DCAA). The latter piece: (1) briefly summarizes the history of the case, explaining how a routine contractual compliance audit lead to a $25 million malpractice award; (2) introduces the discretionary function exception to the FTCA; (3) …