Government Contracts Commons^™

Real Promise For False Claims: A Whistleblower Litigation Strategy To Reward Investigative Journalism, Frank D. Lomonte

Washington Law Review

Every year, investigative reporters uncover stories of waste, fraud, and corruption, alerting the government to taxpayer ripoffs that had previously gone undiscovered or ignored. For decades, non-journalists have been reaping windfall rewards—sometimes in the millions—by using false-claims statutes to bring whistleblower actions on the government’s behalf. With news organizations struggling for their economic survival, and efforts to secure alternative financial support through government bailouts faltering, is it time for journalists to seek a share of the money they recoup for taxpayers by becoming plaintiffs?

This Article explores the possibilities, and downside risks, of using the federal False Claims Act, and …

Drawing The Line: Board Of Contract Appeals' Jurisdiction To Make Determinations Of Fraud, Benjamin Williams

Catholic University Law Review

No abstract provided.

Emerging Policy And Practice Issues, Steven L. Schooner, David Berteau

GW Law Faculty Publications & Other Works

This paper, presented at the West Government Contracts Year in Review Conference (covering 2013), attempts to identify the key trends and issues in U.S. federal procurement for 2013. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement spending trend and attempts to predict what lies ahead. Budgetary and financial insecurity were less significant last year, but there is no question that the spending reduction represents a meaningful change in the long-term trend. More broadly, the paper discusses agency purchasing data (particularly at the Defense Department), grants spending and major changes in uniform guidance, the continued Defense …

Civil Consequences Of Corruption In International Commercial Contracts, Padideh Ala'i

Scholarly Articles in Law Reviews & Journals

The United States legal system seeks to prevent and prohibit bribery and corruption through a myriad of laws, regulations and policies. Anti-corruption jurisprudence is more developed in the context of public sector contracts where the United States criminalizes bribery of public officials through 18 U.S.C. §201 (Bribery of Public Officials and Witnesses). In addition, the United States was the first country to criminalize bribery of foreign government officials in 1977 with the passage of the Foreign Corrupt Practices Act (FCPA). The FCPA has since been amended to comply with the adoption of the OECD Convention on Combating Bribery of Foreign …

Tying Together Termination For Convenience In Government Contracts , Lawrence Lerner

Pepperdine Law Review

No abstract provided.

Contract Theory And The Failures Of Public-Private Contracting, Wendy Netter Epstein

All Faculty Scholarship

The market for public-private contracting is huge and flawed. Public-private contracts for services such as prisons and welfare administration tend to result in cost savings at the sacrifice of quality service. For instance, to cut costs, private prisons skimp on security. Public law scholars have studied these problems for decades and have proposed various public law solutions. But the literature is incomplete because it does not approach the problem through a commercial lens. This Article fills that gap. It considers how economic analysis of contract law, in particular efficiency theory and agency theory, bear upon the unique problems of public-private …

The Congressional War On Contractors, Jessica Tillipman

GW Law Faculty Publications & Other Works

The U.S. Suspension & Debarment regime is designed to ensure that the federal government does business only with “responsible” partners. One of the most fundamentally (and frequently) misunderstood aspects of the FAR 9.4 suspension & debarment system is that these tools are only to be used for the purpose of protecting the Government, not to punish contractors for their past misconduct. Unfortunately, recent congressional initiatives demonstrate many legislators’ desire to transform debarment into a tool of punishment by banishing contractors from the procurement system “with little consideration of whether such action is needed or fair."

Instead of focusing on the …

Emerging Policy And Practice Issues (2012), 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 2012), attempts to identify the key trends and issues for 2013 in U.S. federal procurement. Budgetary and financial insecurity emerge as the most significant emerging issues in government contracting. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement spending trend and attempts to predict what lies ahead. Among other things, it discusses the pending sequestration, procurement spending rates, agency purchasing data (particularly at the Defense Department, Department of Homeland Security, and the Department of State and the Agency for International Development), grants spending, …

Emerging Policy And Practice Issues (2011), 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 2011), attempts to identify the key trends and issues for 2012 in U.S. federal procurement. It begins from the premise that the most significant emerging issue in government contracting, looking ahead, is the money (or lack of it). As the fiscal belt tightens, the procurement landscape - what the government buys, from whom, and how - will necessarily change. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement spending trend and attempts to predict what lies ahead. It also discusses the proliferation of …

The Foreign Corrupt Practices Act & Government Contractors: Compliance Trends & Collateral Consequences, Jessica Tillipman

GW Law Faculty Publications & Other Works

As Government contractors expand their business overseas, they expose themselves to the risk of violating the Foreign Corrupt Practices Act (FCPA) and the high sanctions that accompany those violations. Given the nature of a Government contractor’s business, they are naturally at greater risk of violating the FCPA than those companies that do not interact with Government officials on a regular basis.

This article begins by providing an overview of the FCPA and a review of recent FCPA enforcement trends, and then considers the collateral consequences of a violation of the FCPA by Government contractors. In addition to fines, penalties, and …

Emerging Policy And Practice Issues (2010), 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 2010), attempts to identify the key trends and issues for 2011 in U.S. federal procurement. The paper, among other things, focuses on the intense activity that emanated from the Defense Department, primarily through USD(AT&L) Ashton Carter’s Efficiency and Productivity Initiative; summarizes empirical evidence that the federal procurement spending growth cycle finally has run its course; offers a window into the concentration of spending amongst the largest contracting agencies and government contractors; points out that, despite all of the attention focused upon government contracting, over the last decade …

Contractors And The Ultimate Sacrifice, Steven L. Schooner

GW Law Faculty Publications & Other Works

This brief article quantifies how, in Iraq and Afghanistan, contractor personnel increasingly have made the ultimate sacrifice alongside, or in lieu of, service members. The enormity of the contractor sacrifice gives pause - more than 2,000 contractors have been killed in Iraq and Afghanistan. But what is more striking is that contractors are bearing an increasing proportion of the annual death toll. In the first half of 2010, more contractors died in Iraq and Afghanistan supporting the war effort than members of the U.S. military waging these wars.

, Mary Ellen Coster Williams

American University Law Review

No abstract provided.

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 …

Raising The Hue And Crying: Do False Claims Act Qui Tam Relators Act Under Color Of Federal Law?, Isaac B. Rosenberg

W&M Law Student Publications

No abstract provided.

The Little Engine That Could: The Success Of The Stewardship Contracting Authority, Kimberly Hausbeck

William & Mary Environmental Law and Policy Review

No abstract provided.

The Catch-22 In Prison Privatization: The Problem With The Solution, Ahmed M.T. Riaz

ExpressO

A step into just about any state prison in the United States reveals an institution plagued by over-population, with just about every prison running at more than 100% capacity. The problem, of course, is not new but one that has received great attention. In the past decade or so the solution has been privatization of state prisons. Proponents of privatization have pushed forth the idea that private institutions are the solution to prison overcrowding. However, by looking to for-profit private institutions as a means to resolving the problems of the penal system, are legislators in fact ensuring that the problems …

When Second Comes First: Correcting Patent’S Poor Secondary Incentives Through An Optional Patent Purchase System, Jordan Barry

ExpressO

As research has advanced, technologies have become more closely knit, and the relationships between them—both complementary and competitive—have become increasingly important. Unfortunately, the patent system’s use of monopoly power to reward innovators creates inefficient results by overly encouraging the development of substitute technologies and discouraging the development of complementary technologies. This paper explains how an optional patent purchase system could help ameliorate such problems and discusses the implications of such a system.

Finding Common Ground In The World Of Electronic Contracts: The Consistency Of Legal Reasoning In Clickwrap Cases, Robert L. Dickens

ExpressO

Electronic contractual arrangements have raised complex legal issues unprecedented in the law. Technology s impact on traditional contract law doctrines is readily apparent in the dilemmas generated by recent developments in computer software, hardware, and Internet transactions. In such transactions, sellers have increasingly begun utilizing “clickwrap” agreements, whereby standard terms and conditions are displayed on the computer screen when the user attempts to access the seller’s services. Not surprisingly, the enforceability of clickwrap terms, which are often not known to the user until after payment, has become a subject of much debate in the courts. Because many of the clickwrap …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Corporations And The Lateral Obligations Of The Social Contract, Benedict Sheehy

ExpressO

Social contract theorists suggest that society at some level is based on the idea that human people surrender freedom for the privilege of participating in society. That participation implicitly requires more than mere minimal compliance with law. Each human person’s contribution to society above the legal baseline, permits humans to create a society that is at least tolerable. Corporations as non-human act without regard for these supra-legal obligations which results in society suffering injustice. Corporate participation in society has become increasingly unjust and has done so to the extent that we may speak of living in a post-ethical world.

China-Australia Free Trade Agreement New Icing On An Old Cake-An Opportunity For Fair Trade?, Benedict Sheehy, Jackson N. Maogoto

ExpressO

The on-going challenge in economic development and globalization, particularly for developing countries, is the issue of development and equality in society. The issue becomes particularly problematic when confronted in matters of international trade. Often misnamed anti-globalization activists and pro-globalization activists fail to take note of the underlying assumptions that lead them to conflict—namely, the actual costs and benefits to society that result from their particular positions. In essence, both activists are searching for ways to improve the lives of people in the domestic context and to minimize the damage to their society and environment. China’s impressive economic record is threatened …

Un-Fair Trade As Friendly Fire: The Australia-Usa Free Trade Agreement, Benedict Sheehy

ExpressO

Trade, economists and trade theorists advise, is a mutually beneficial exercise. Among this group, a particular set of advocates, claim that “Free Trade” is in the interest of all parties. As will be demonstrated, Free Trade is not truly “free” but an exercise of foreign policy and the implementation of policies favouring wealthy corporate interest groups. Free Trade is controlled by wealthy nations who have stacked the rules in favour of themselves, and in particular their corporate interests, and against the poor producers in poor nations. This control is used contrary to fairness, economic and ecological logic. Fair trade, by …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Review Essay: Radicals In Robes , Dru Stevenson

ExpressO

This essay reviews and critiques Cass Sunstein’s new book entitled Radicals in Robes. After a discussion of Sunstein’s (somewhat misleading) rhetorical nomenclature, this essay argues that Sunstein’s proposed “minimalist” methodology in constitutional jurisprudence is beneficial, but not for the reasons Sunstein suggests. Sunstein alternatively justifies judicial restraint or incrementalism on epistemological self-doubt (cautiousness being an outgrowth of uncertainty) and his fear that accomplishments by Progressives in the last century will be undone by conservative judges in the present. Constitutional incrementalism is more convincingly justified on classical economic grounds. While affirming Sunstein’s overall thesis, this essay offers an alternative rationale for …

Who’S In And Who’S Out? Can India’S Answer Help Us Determine Who Qualifies For Affirmative Action? , Sean A. Pager

ExpressO

Who should be the beneficiaries of racially targeted affirmative action? In its Croson decision, the Supreme Court answered part of the “Who Question” when it conditioned affirmative action eligibility on underrepresentation. What the Court did not tell us was underrepresentation of whom? The Court thus instructs us to select beneficiary groups by counting heads, but leaves open which heads get counted where and what categories to use.

By artificially separating what are necessarily related inquiries, the Court left a definitional lacuna that lower courts have struggled to fill. Such definitional issues matter because they often determine who benefits from affirmative …

Backlash To Globalization In The Form Of State Legislation: Constitutional Implications, John R. Weber

ExpressO

This paper will examine the Constitutional issues raised by the influx of state anti-outsourcing legislation using a recently enacted New Jersey statute. The New Jersey statute is very similar to, and contains many of the same features as, many other bills introduced in legislatures across the nation. Moreover, the political impetus for the introduction and enactment of the legislation reflects the struggle over the outsourcing issue that is occurring in communities nationwide.

Choice In Government Software Procurement: A Winning Combination, Mclean Sieverding

ExpressO

Governments are such significant purchasers of IT products and services that their purchasing decisions have a substantial impact on the world’s IT marketplace. This fact calls into question the wisdom of decisions by a few policymakers (on national, state, and local levels) around the world that have sought to require that governmental procurement officials give varying degrees of preference to open source software (OSS) when evaluating competing software solutions, claiming, among other things, that such preferences are justified because OSS is cheaper and more interoperable than proprietary software and needs government handicapping in order to enter the market to compete …

Government For Hire: Privatizing Foreign Affairs And The Problem Of Accountability Under International Law, Laura A. Dickinson

William & Mary Law Review

No abstract provided.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.