Government Contracts Commons^™

Does Government Contracting Have A Remedies Problem? A Response To Eric M. Singer, Competitive Public Contracts, Steven W. Feldman

Nevada Law Journal Forum

In his provocative article, Competitive Public Contracts, Eric M. Singer claims that deficient contractor performance is inherent in government contracting. Singer asserts that, “fundamentally,” public purchasing has a “contract-remedies problem”—the absence of both any “credible threat” and any “effective contract remedy to deter or correct [contractor] misbehavior.” Unlike private buyers, who have plausible threats to motivate contractors to perform properly, governments are said to “often” labor under intrinsic and extrinsic limitations that undermine remedial alternatives. Consequently, Singer argues that governments (especially state and local agencies) have no “effective contract remedy” to induce improved contractor performance. Among these “ineffective” remedies, according …

Palm Papers, Nicole Rothwell

Capstones

The Organized Crime and Corruption Reporting Project (OCCRP) came into possession of a secret dataset of property owners of the Palm Islands, the elite high-end artificial islands on the coast of Dubai.

With over 250 neighborhoods on Dubai’s waterfront, a group of journalists around the world has been investigating who these individuals are that can afford the posh and pricey real estate. While most fall into the uber-rich category, some also have corrupt to criminal backgrounds leading to questions such as if the Palm Islands are truly a real-estate paradise, or instead a refuge for the corrupt.

The task for …

Sovereign Debt Restructuring And English Governing Law, Steven L. Schwarcz

Brooklyn Journal of Corporate, Financial & Commercial Law

The problem of sovereign indebtedness is becoming a worldwide crisis because nations, unlike individuals and corporations, lack access to bankruptcy laws to restructure unsustainable debt. Decades of international efforts to solve this problem through contracting and attempted treaty-making have failed to provide an adequate debt-restructuring framework. A significant amount of outstanding sovereign debt is governed, however, by English law. This Article argues that the U.K. Parliament has the extraordinary power to help solve the problem of unsustainable country debt by changing English law to facilitate fair and consensual debt restructuring. This Article also proposes modifications to English law that Parliament …

United States V. Osage Wind, Llc, Summer Carmack

Public Land & Resources Law Review

The Osage Nation, as owner of the beneficial interest in its mineral estate, issues federally-approved leases to persons and entities who wish to conduct mineral development on its lands. After an energy-development company, Osage Wind, leased privately-owned surface lands within Tribal reservation boundaries and began to excavate minerals for purposes of constructing a wind farm, the United States brought suit on the Tribe’s behalf. In the ensuing litigation, the Osage Nation insisted that Osage Wind should have obtained a mineral lease from the Tribe before beginning its work. In its decision, the Tenth Circuit applied one of the Indian law …

Protecting Whistleblowing (And Not Just Whistleblowers), Evan J. Ballan

Michigan Law Review

When the government contracts with private parties, the risk of fraud runs high. Fraud against the government hurts everyone: taxpayer money is wasted on inferior or nonexistent products and services, and the public bears the burdens attendant to those inadequate goods. To combat fraud, Congress has developed several statutory frameworks to encourage whistleblowers to come forward and report wrongdoing in exchange for a monetary reward. The federal False Claims Act allows whistleblowers to file an action in federal court on behalf of the United States, and to share in any recovery. Under the Dodd- Frank Act, the SEC Office of …

The Diversity Rationale For Affirmative Action In Military Contracting, Hugh B. Mcclean

Catholic University Law Review

Section 8(a) of the Small Business Act (the ‘‘8(a) program’’) is a federal contracting program that permits the government to award certain contracts to members of designated racial groups that own small businesses. Courts have denied facial challenges to the program, but have upheld challenges alleging the program is unconstitutional as applied to particular industries. As a result, the military is banned from using the program in at least one industry, and inherits significant risk when using the program in other industries. The government has never articulated a diversity rationale to justify the use of race-conscious measures in the military …

How The United States Postal Service (Usps) Could Encourage More Local Economic Development, Randall K. Johnson

Chicago-Kent Law Review

No abstract provided.

Estimating An Acquisition Program’S Likelihood Of Staying Within Cost And Schedule Bounds, Ryan Trudelle, Edward D. White, Clay M. Koschnick, Jonathan D. Ritschel, Brandon M. Lucas

Faculty Publications

Program managers use prior experience to spot potential programmatic areas of concern. Augmenting this experience, the authors present an empirical procedure to estimate the likelihood of a program not exceeding two schedule and cost thresholds: (a) 15 percent of the initial total acquisition cost estimate from Milestone (MS) B to Initial Operating Capability (IOC); and (b) 15 percent of the estimated length (in months) between MS B and IOC—the second bound being 25 percent of the cost and schedule estimate. Using logistic regression and odds ratios, the authors analyze 49 Department of Defense programs and generally find that electronic system …

Modeling Median Will-Cost Estimates For Defense Acquisition Programs, Ryan Trudelle, Edward D. White, Clay Koschnick, Brandon Lucas

Faculty Publications

Purpose: The introduction of “should cost” in 2011 required all Major Defense Acquisition Programs (MDAP) to create efficiencies and improvements to reduce a program’s “will-cost” estimate. Realistic “will-cost” estimates are a necessary condition for the “should cost” analysis to be effectively implemented. Owing to the inherent difficulties in establishing a program’s will-cost estimate, this paper aims to propose a new model to infuse realism into this estimate.

Design/methodology/approach: Using historical data from 73 Departments of Defense programs as recorded in the selected acquisition reports (SARs), the analysis uses mixed stepwise regression to predict a program’s cost from Milestone B (MS …

Analyzing Cost Growth At Program Stages For Dod Aircraft, Scott J. Kozlak, Edward D. White, Jonathan D. Ritschel, Brandon Lucas, Michael J. Seibel

Faculty Publications

This research examines Cost Growth Factors (CGF) at various program stages for 30 Department of Defense aircraft programs. From Milestone (MS) B, the authors determine CGFs at the Critical Design Review (CDR), First Flight (FF), Development Test and Evaluation End, Initial Operational Capability (IOC), and Full Operational Capability. They find development CGFs are significantly larger than procurement CGFs. Additionally, cost growth primarily occurs early in the program. At CDR, which occurs on average at the 12 percent completion point of a program, aircraft programs had already experienced on average 15 percent of their total program cost growth. The first spike …

Encroachment, Loss Of Five Yards: Government Attorneys And The No- Contact Rule's Place In Civil False Claims Act Investigations, Erica L. Burchell

Mercer Law Review

A telephone rings, interrupting the otherwise quiet hum of a Tuesday afternoon's work in a government attorney's office. A pair of eyes dart quickly from a blinking cursor on the computer screen to the receiver of the multiline telephone. A hand reaches forward from the keyboard to grasp the telephone receiver, and, as the receiver is raised up to the attorney's ear, with the single uttering of "good afternoon," an ethical dilemma arises. The voice on the other end of the line has information–information to share–and now the attorney must decide whether continuing the conversation would comply with the applicable …

Subcontracting And The Survival Of Plants In The Road Construction Industry: A Panel Quantile Regression Analysis, Dakshina G. De Silva, Georgia Kosmopoulou, Carlos Lamarche

Economics Faculty Publications

This paper investigates how subcontracting parts of contracted work shapes entrants’ success and survival. We find that newly developed quantile regression approaches can be adapted to study survival of firms competing for government contracts in road construction. The method is applied on a data set that includes patterns of firm entry, exit and auction related information. We find an apparent increase in the business life of firms who subcontract out part of their projects. In Texas, these subcontracting effects appear to be more pronounced for firms with few or no options outside the industry, and among firms who contract out …

Solid V. Eighth Judicial Dist. Court, 133 Nev. Adv. Op. 17 (Apr. 27, 2017), Hunter Davidson

Nevada Supreme Court Summaries

The Court interpreted Nevada Supreme Court Rules (“SCR” or the “Rules”) on Electronic Coverage of Court Proceedings: (1) My Entertainment TV (MET) is a “news reporter” under SCR 229(1)(c) because it collects, edits, and publishes footage concerning local events for public dissemination; (2) Clark County court proceedings footage has the educational or informational purpose required by SCR 241; (3) camera presence in the court room alone does not overcome the presumption permitting electronic recording of court proceedings under SCR 230; and (4) contract provisions must be read together, and the result should comport with the SCR on electronic coverage of …

Misconstruing Whistleblower Immunity Under The Defend Trade Secrets Act, Peter S. Menell

Nevada Law Journal Forum

In crafting the Defend Trade Secrets Act of 2016 (DTSA), Congress went beyond the federalization of state trade secret protection to tackle a broader social justice problem: the misuse of nondisclosure agreements (NDAs) to discourage reporting of illegal activity in a variety of areas. The past few decades have witnessed devastating government contracting abuses, regulatory violations, and deceptive financial schemes that have hurt the public and cost taxpayers and investors billions of dollars. Congress recognized that immunizing whistleblowers from the cost and risk of trade secret liability for providing information to the Government could spur law enforcement. But could this …

Supervising Outsourcing: The Need For Better Design Of Blended Governance, Nina A. Mendelson

Book Chapters

We are long past the “vending machine”-style privatization of government functions – where the government contracts to buy a discrete product or service at a set price, whether aircraft components or landscaping. Government is increasingly enlisting, or collaborating with, private entities for functions long perceived as distinctly public. Private entities may make policy explicitly (through standards that agencies later adopt) or implicitly (through the third party verification of compliance with regulatory objectives). For example, the Department of Health and Human Services relies on the recommendations of an American Medical Association committee of specialist physicians to establish Medicare physician payments, while …

The Role Of Government Contracts In Furthering National Economic And Socioeconomic Policies, Thomas W. Reilly

The Catholic Lawyer

No abstract provided.

Adaptive Acquisition: An Evolving Framework For Tailoring Engineering And Procurement Of Defense Systems, Christopher Gunderson

AFIT Documents

The Defense Acquisition System, as documented in DoDI 5000.02, mandates that programs should not follow process models by rote. Rather, stakeholders should tailor program activities and documentation according to specific requirements, priorities, risks, and boundary conditions. Adaptive acquisition provides an evolving set of broadly applicable adaptive engineering and adaptive procurement tools and processes intended to help tailor acquisition programs.

International Commodity Agreements, Kenneth Klein

Georgia Journal of International & Comparative Law

No abstract provided.

Wisconsin Patent Acquisition In The Final Frontier: Creating A Void, Nicholas J. Thibodeau

Marquette Intellectual Property Law Review

In early 2006, the Wisconsin Legislature passed 2005 Wisconsin Act 335, creating the Wisconsin Aerospace Authority (WAA). Unique to this particular act is the enumeration of the power to acquire intellectual property by the WAA. While granting them the power to acquire intellectual property is not unique, there is an interesting problem with that acquisition: the Act does not conform to the Parker Doctrine, and thus allows the WAA to be subject to antitrust litigation in its intellectual property acquisition under the proper circumstances. Specifically, the Act allows the WAA to enter into exclusive contracts that allow the WAA to …

Contractors’ State License Board, Mayra Castro, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.

The Rise Of The Drones: Framework And Governance— Why Risk It!, Sarah J. Fox Dr

Journal of Air Law and Commerce

Some seventy-one years ago, it was found that drones could play a role within our society. While the military was quick to realize this and develop the technology, it is only recently that the civilian application is being explored en masse. That said, given this prediction and the military direction, legislators find themselves now unprepared for the civilian use and market potential. However, this is not an unprecedented situation; the civil aviation (manned) market has often shown an inability to work together, be prepared, and cooperate. As a consequence, there has been fragmentation and, arguably, casualties associated with such lethargy. …

Reasonable Interpretation, Unreasonable Results? Howmandated Government Set-Asides For Veteran-Ownedbusinesses Is A Win-Loss Proposition—Kingdomwaretechnologies, Inc. V. United States, Benjamin M. Kline

Mitchell Hamline Law Review

No abstract provided.