Government Contracts Commons^™

Putting An End To False Claims Act Hush Money: An Agency-Approval Approach To Qui Tam Prefiling Releases, Jeremy Johnston

Vanderbilt Law Review

The False Claims Act ("FCA") deputizes private citizens to combat fraud against the United States government by offering them a portion of the bounty.' This concept has existed in some form for hundreds of years-the strategy of "setting a rogue to catch a rogue." Medieval England used it in place of police forces. The American Colonies caught pirates this way. Even Abraham Lincoln protected the Union Army from faulty equipment by encouraging corrupt military suppliers to report one another. In modern American history, the FCA has proven extraordinarily effective at using this ancient tactic. The Act fines wrongdoers triple the …

Beyond Transparency: Rethinking Election Reform From An Open Government Perspective, Michael Halberstam

Seattle University Law Review

During the past decade, “transparency” has become a focus of democratic governance. Open government and right-to-know regimes have been around at least since the 1970s. They include measures like open meeting laws, campaign finance disclosure, lobbying registration, and freedom of information laws. But the Open Government projects— variously referred to as e-democracy, Open Data, or Government 2.0— have evolved into something new and different. They view transparency not primarily as a right to know, but as a condition for a more efficient, intelligent, and cooperative form of democratic government. This Article considers how various election reform projects fit with the …

Kicking Employers While They Are Down: Vicarious Liability Under The Anti-Kickback Act, Daniel Horner

Catholic University Law Review

The Anti-Kickback Act is one of the instruments the Government uses to punish and prevent procurement fraud. The Act creates criminal and civil liability for the use of kickbacks by government contractors. Specifically, the civil provision contains two subsections -- one punishing employees for their actions, and the other punishing employers under a theory of strict liability. In United States ex rel. Vavra v. Kellogg, Brown & Root, the United States Court of Appeals for the Fifth Circuit held that employers are subject to vicarious liability for their employees' violations of the first subsection of the civil suit provision …

The Revolving Door, Wentong Zheng

Notre Dame Law Review

The revolving door between the government and the private sector has long been presumed to lead to the capture of regulators by industry interests. A growing body of empirical literature, however, either finds no conclusive evidence of a capture effect or finds evidence of an opposite effect that the revolving door indeed results in more aggressive, not less aggressive, regulatory actions. To account for these incongruous results, scholars have formulated and tested a new “human-capital” theory positing that revolving-door regulators have incentives to be more aggressive toward the regulated industry as a way of signaling their qualifications to prospective industry …

European Community: European Commission And Denmark Reach Settlement Of Dispute Over Construction Contract Granted By Denmark To Six-Party Consortium In Violation Of The Public Procurement Provisions In The Treaty Of Rome., G. Brian Raley

Georgia Journal of International & Comparative Law

No abstract provided.

Assessing The Participation Of The El Paso Construction Sector In Federal Contracting Opportunities, Ana Rodriguez Camargo

Technical Reports

No abstract provided.

Quebec's Bill 1: A Case Study In Anti-Corruption Legislation And The Barriers To Evidence-Based Law-Making, Graham Steele

LLM Theses

Corruption is a significant problem around the world. Large-scale public works projects are especially prone to corruption. Much international effort has been devoted to fighting corruption, but the impact of these efforts is debatable. Public-sector procurement in the Canadian province of Quebec has, since 2009, been beset by scandal. After defeat of the Liberal government in 2012, the first bill introduced by the new Parti Québécois government was an anti-corruption measure. The heart of Bill 1 is a system by which construction contractors have to demonstrate "integrity" in order to bid on public contracts. Quebec's lawmakers could have looked to …

Proper Pleading Or Premature Proof? Rule 9(B)'S Particularity Requirement And The False Claim S Act, Fisher K. Law

Georgia Law Review

Many taxpayer dollars are paid to private contractors supplying goods and services necessary to carry out federal programs in areas like healthcare, defense, and education. These private contractors profit heavily from their dealings with the federal government, but unfortunately not all of these contractors are so patriotic. Indeed, some steal from the treasury by invoicing goods or services they did not actually provide. Congress attempted to reel in this dishonest practice with its enactment of the False Claims Act during the Civil War. To supplement the enforcement effort of the Department of Justice, Congress included a qui tam provision allowing …

Taming The Hurricane Of Acquisition Cost Growth – Or At Least Predicting It, Allen J. Deneve, Erin T. Ryan, Jonathan D. Ritschel, Christine M. Schubert Kabban

Faculty Publications

Cost growth is a persistent adversary to efficient budgeting in the Department of Defense. Despite myriad studies to uncover causes of this cost growth, few of the proposed remedies have made a meaningful impact. A key reason may be that DoD cost estimates are formulated using the highly unrealistic assumption that a program’s current baseline characteristics will not change in the future. Using a weather forecasting analogy, the authors demonstrate how a statistical approach may be used to account for these inevitable baseline changes and identify related cost growth trends. These trends are then used to reduce the error in …

Changing The Face Of The Earth: The Morrison-­Knudsen Corporation As Partner To The U.S. Federal Government, Christopher S. Blanchard

Dissertations and Theses

Beginning with reclamation projects in the western U.S., the heavy construction industry helped the federal government grow in size and sophistication in the twentieth century. The Morrison-­Knudsen Corporation throughout the twentieth century represented one of the federal government's favored contractors. Following western reclamation projects, the U.S. federal government then used contractors to help move the U.S. economy out of the Depression, prepare for World War II, wage the Cold War at home and abroad, and win the space race. Thus, at key stages in United States history we observe the necessity of the U.S. federal government partnering with the heavy …

A Bridge To Nowhere: Exposing Competition And Pricing Regulations That Lead To Mismanagement And Waste In Government Contracting, Jim R. Moye

Villanova Law Review (1956 - )

No abstract provided.

An Argument For Ratification: Some Basic Principles Of The 1994 Inter-American Convention On The Law Applicable To International Contracts, Justin P. Fletcher

Georgia Journal of International & Comparative Law

No abstract provided.

Agency Costs And The False Claims Act, David Farber

Fordham Law Review

The False Claims Act represents the U.S. Justice Department’s most effective tool in detecting, punishing, and deterring fraud against the government. The effectiveness of the False Claims Act is due in large part to the law’s qui tam provisions, which provide a private right of action to whistleblowers who may sue fraudsters on behalf of the government in exchange for a percentage of the recovery. The resulting relationship between the government and whistleblowers has led to increased detection and recoveries from corporate defendants who defraud and abuse government programs.
However, these whistleblower provisions also come with social costs where profit-motivated …

Reconstructing Iraq: An Analysis Of, And Proposed Solutions To, The Financing Challenges Facing Iraqi Small And Mid-Sized Businesses, Timothy B. Mills

Georgia Journal of International & Comparative Law

No abstract provided.

The European Union, State-Sponsored Gambling, And Private Gambling Services: Time For Harmonization?, Matthew W. Mauldin

Georgia Journal of International & Comparative Law

No abstract provided.

Rethinking The Role And Regulation Of Private Military Companies: What The United States And United Kingdom Can Learn From Shared Experiences In The War On Terror, A. Grayson Irvin

Georgia Journal of International & Comparative Law

No abstract provided.

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

Catholic University Law Review

No abstract provided.

Initial Capabilities Documents: A 10-Year Retrospective Of Tools, Methodologies, And Best Practices, Bryan D. Main, Michael P. Kretser, Joshua Shearer, Darrin A. Ladd

Faculty Publications

The Joint Capabilities Integration and Development System (JCIDS) is 10 years old and ripe for review. A central output document of the JCIDS process is an Initial Capabilities Document (ICD) used by the Department of Defense to define gaps in a functional capability area and define new capabilities required. The research team analyzed 10 years of ICDs to identify methods and trends. The team found that several methodologies were favored and a convergence emerged in format and necessary content. Additionally, potential shortfalls in current best practices of interest to implementers and decision makers are identified. Guidelines and best practices are …

Qualified Immunity: Discretionary Function, Extraordinary Circumstances, And Other Nuances, Karen M. Blum

Touro Law Review

No abstract provided.

Preserving Home Rule: The Text, Purpose, And Political Theory Of California’S Municipal Affairs Clause, Brett A. Stroud

Pepperdine Law Review

No abstract provided.

Ensuring Contractor Accountability Overseas: A Civilian Extraterritorial Jurisdiction Act Would Be Preferable To Expansion Of The False Claims Act, Rachel M. Kelly

William & Mary Business Law Review

This Note considers the advisability of amending the False Claims Act’s qui tam provisions beyond instances of fraud to include criminal allegations against government contractors employed overseas. It considers the negative effects that result from qui tam actions in the fraud context and discusses alternatives for holding contractors accountable for crimes committed overseas that could avoid those negative effects. This Note particularly focuses on and recommends a civilian corollary to the Military Extraterritorial Jurisdiction Act—the Civilian Extraterritorial Jurisdiction Act. It discusses the benefits that the Civilian Extraterritorial Jurisdiction Act would provide such as increased judicial efficiency, increased prosecutorial flexibility, and …

Government Procurement Law Perspectives: Spring 2014, Government Procurement Law Program

Government Procurement Law Perspectives

No abstract provided.

Slides: “Human Sustainability” In Natural Resources Industries: The New Frontier In Compliance, Social Responsibility, Disclosure, And Transparency, T. Markus Funk

Natural Resource Industries and the Sustainability Challenge (Martz Winter Symposium, February 27-28)

Presenter: T. Markus Funk, Partner, Perkins Coie

21 slides

Is Welching On Public Pension Promises An Option For Illinois? An Analysis Of Article Xiii, Section 5 Of Illinois Constitution, 48 J. Marshall L. Rev. 167 (2014), Eric Madiar

UIC Law Review

This Article reviews not only the Pension Clause’s language and origins, but also the constitutional convention debates discussing it, and relevant court decisions construing the provision. The Article also evaluates the arguments made by legal commentators on behalf of particular stakeholders about whether the Clause allows the legislature to cut the pension benefits of current public employees and retirees as well as other related issues. The Article concludes that the General Assembly cannot unilaterally cut the pension benefits of current employees or retirees as a means to reduce the State’s existing pension liabilities based on the Clause’s plain language, the …

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 …

Investigation Into The Ratio Of Operating And Support Costs To Life-Cycle Costs For Dod Weapon Systems, Gary L. Jones, Edward D. White, Erin T. Ryan, Jonathan D. Ritschel

Faculty Publications

Recent legislation, such as the Weapon Systems Acquisition Reform Act of 2009, requires a renewed emphasis on understanding Operating and Support (O&S) costs. Conventional wisdom within the acquisition community suggests a 70:30 cost ratio with respect to O&S and acquisition of an average weapon system. Using 37 Air Force and Navy programs, the authors estimate the mean overall ratio of O&S costs to acquisition costs to be closer to 55:45, although many weapon systems displayed significant deviation from this 55 percent average. Contributing factors such as life expectancy and acquisition strategy (i.e., new system or modification) affect this variance. Their …

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 …

Government Procurement Law Perspectives: Fall 2013, Government Procurement Law Program

Government Procurement Law Perspectives

No abstract provided.

The Tropics Exploited: Risk Preparedness And Corporate Social Responsibility In Offshore Energy Development, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

"We The People," Constitutional Accountability, And Outsourcing Government, Kimberly N. Brown

Indiana Law Journal

The ubiquitous outsourcing of federal functions to private contractors, although benign in the main, raises the most fundamental of constitutional questions: What institutions and actors comprise the “federal government” itself? From Abu Ghraib to Blackwater, a string of scandals has heightened public awareness that highly sensitive federal powers and responsibilities are routinely entrusted to government contractors. At the same time, the American populace seems vaguely aware that, when it comes to ensuring accountability for errors and abuses of power, contractors occupy a special space. The fact is that myriad structural and procedural means for holding traditionally government actors accountable do …