Government Contracts Commons^™

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

Cardozo Law Review

The market for public-private contracting is huge and flawed. Privatization proponents predict that privatizing will both cut costs and improve service quality. But 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 by applying contract-theory principles to public-private contracting.

It …

The Dialectics Of Citizenship: Exploring Privilege, Exclusion, And Racialization, Bernd Reiter

Government and International Affairs Faculty Publications

What does it mean to be a citizen? What impact does an active democracy have on its citizenry and why does it fail or succeed in fulfilling its promises? Most modern democracies seem unable to deliver the goods that citizens expect; many politicians seem to have given up on representing the wants and needs of those who elected them and are keener on representing themselves and their financial backers. What will it take to bring democracy back to its original promise of rule by the people? Bernd Reiter’s timely analysis reaches back to ancient Greece and the Roman Republic in …

Army Corps Of Engineers, U.S., Bert Chapman

Libraries Faculty and Staff Scholarship and Research

Provides an overview of how the U.S. Army Corps of Engineers has influenced historical and contemporary economic, environmental, and political developments in the American West.

Not Quite A Civilian, Not Quite A Soldier: How Five Words Could Subject Civilian Contractors In Iraq And Afghanistan To Military Jurisdiction , Katherine Jackson

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Epistemology And Methodology Of Exploratory Social Science Research: Crossing Popper With Marcuse, Bernd Reiter

Government and International Affairs Faculty Publications

This article seeks to propose a rationale for exploratory research in the social sciences. Inspired by the recent debates around qualitative methods (Gerring, 2001; George and Bennett, 2005; Brady and Collier, 2004; Mahoney and Rueschemeyer, 2003; Ragin, 2008; to name just a few), I seek to demonstrate that exploratory research also has a rightful place within the social sciences. In order to live up to its potential, exploratory research needs to be conducted in a transparent, honest, and selfreflexive way – and follow a set of guidelines that ensure its reliability. Exploratory research, if conducted in such a way, can …

The Scope And Limitations Of The Implied Warranty On Federal Government Design Specifications , Charles Mandel

Pepperdine Law Review

No abstract provided.

Tying Together Termination For Convenience In Government Contracts , Lawrence Lerner

Pepperdine Law Review

No abstract provided.

State Preemption Of Cable Television Regulation — Whatever Happened To The Sanctity Of Contract?, William M. Marticorena, Lynda E. Marticorena

Pepperdine Law Review

California Government Code section 53066.1 as recently amended gives cable television operators the right to obtain rate increases even in the face of the city or county franchisor opposition. Since most cable franchise agreements allow the franchisor to control rates for the cable service, there is a conflict between the statute and the franchise contracts. This article examines the issue of whether the statute violates the constitutional provisions against the impairment of contracts and whether the franchisor or a subscriber of the service has the necessary standing to assert the constitutional argument.

Fear And Loathing On The California Coastline: Are Coastal Commission Property Exactions Constitutional?, Mitchell F. Disney

Pepperdine Law Review

No abstract provided.

Book Review: Government Contracts Under The Federal Acquisition Regulation, Robert C. Gusman

Pepperdine Law Review

No abstract provided.

The Implications Of Alternative Dispute Resolution Processes For Decisionmaking In Administrative Disputes, Wallace Warfield

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 …

Waiting For Leviathan: A Note On Modern Wo'er Trading Co Ltd V Ministry Of Finance Of The People's Republic Of China, Daniel J. Mitterhoff

Faculty Scholarship

This article analyzes a Chinese bid protest that has taken nearly seven years to adjudicate, yet as of this writing, no institution of the Chinese state has evaluated the substance of the protester’s bid challenge. Instead, the supplier’s complaint has been snared in a grey area between two of China’s multiple bid protest systems, burdening the supplier to push China’s administrative state to respond. The saga of Modern Wo’Er Trading Company Ltd. v The Ministry of Finance of the People’s Republic of China raises compelling questions about the relationship of China’s 1999 Tender and Bidding Law and China’s 2002 Government …

Closing The Loophole: Termination Of State Funding For Some Charter City Construction Projects, Michelle Scheinman

McGeorge Law Review

No abstract provided.

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

Government Procurement Law Perspectives

No abstract provided.

General Dynamics Corporation V. United States: An Unnecessary Distortion Of The State Secrets Privilege In The Contracting Context, Adam Spiers

Journal of Business & Technology Law

No abstract provided.

The Real Issue Behind Stanford V. Roche: Faulty Conceptions Of University Assignment Policies Stemming From The 1947 Biddle Report, Sean M. O'Connor

Michigan Telecommunications & Technology Law Review

The recent Supreme Court decision in Stanford v. Roche laid bare a faulty assumption of the federal research funding system. Government patent policy for federally funded research relies on "contractors"--the recipients of federal funding--to secure patent assignments from their employees. While this practice was routine for private firms and nonprofit research institutions, it was not for universities. This was in part based on the relationship of faculty and other researchers to universities that differed from industry employment relationships. The roots of this faulty assumption can be traced to the seminal 1947 Biddle Report. Detailed monographs drafted as appendices to the …

Overcoming Coloniality: The Potential Of South-South Dialogue About Citizenship, Participatory Democracy, And Development Between Brazil And India, Bernd Reiter

Government and International Affairs Faculty Publications

This chapter argues that North-South dialogue is heavily influenced by the colonial past and burdened by extreme power inequalities. Former colonizing nations control many of the agendas of such dialogue, exposing it to the risks of paternalism, post-colonialism, and tutelage. As a result, coloniality is a condition difficult to escape in north-south dialogue. South-south dialogue, on the other hand, is less implicated by this burden, thus offering a platform for a potentially free - and freeing – critical interchange of ideas and empirical examples that reflect subaltern experiences and provide opportunities for mutual learning. One area where this dialogue is …

A Most Useful Ball Of Thread, Review Of Navigating Hud Programs: A Practitioner's To The Labyrinth By George Weidenfeller & Julie S. Mcgovern, Eds., Nestor M. Davidson

Faculty Scholarship

This book review of Navigating HUD Programs: A Practitioner’s Guide to the Labyrinth (George Weidenfeller & Julie McGovern eds., 2012) discusses the approach the book takes to a range of HUD programs, discusses some intimations of reform efforts suggested by the authors, and explores ways in which the book’s guidance reflects potential benefits in nascent HUD efforts at programmatic consolidation and modernization.

Cross-Debarment: A Stakeholder Analysis, Christopher R. Yukins

GW Law Faculty Publications & Other Works

As more nations and organizations establish debarment (or "blacklisting") systems, to exclude corrupt or incompetent firms and individuals from contracting, a serious question has arisen: if a contractor is debarred, should other jurisdictions automatically exclude that contractor in a "cross-debarment"? This paper, which grew out of an October 2012 symposium at the World Bank, discusses the advantages and disadvantages of cross-debarment, from the standpoint of various stakeholders. The article concludes that some stakeholders (such as debarring officials themselves) might prefer that there be no automatic cross-debarment, so that government officials retain discretion -- and so leverage -- to persuade contractors …

Rethinking The World Bank’S Sanctions System, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The World Bank is reviewing its system for suspending and debarring contractors (known formally as the World Bank sanctions system). The system is used to suspend and debar contractors that have engaged in fraud or corruption (and other enumerated bad acts) related to Bank-financed projects. After reviewing the sanctions process, and identifying what appear to be the Bank’s current goals in its sanctions system (stemming reputational and fiduciary risks), the article recommends that the World Bank defer finalizing any reforms until it concludes its assessment of first principles, and has at hand all the data necessary to assess the sanctions …

The Contract Management Body Of Knowledge: Understanding An Essential Tool For The Acquisition Profession, Neal J. Couture, Steven L. Schooner

GW Law Faculty Publications & Other Works

The collective knowledge of any profession is commonly referred to as its body of knowledge. In the acquisition, procurement, or government contracting profession, the collective wisdom of the National Contract Management Association (NCMA) organizes, and periodically updates, a broadly accepted conceptual inventory of the profession’s acquired knowledge. This article describes the NCMA Guide to the Body of Knowledge, how it was developed and is maintained, and its importance and relevance to people concerned with the contract management profession.

Leasing Sovereignty: On State Infrastructure Contracts, Matthew Titolo

University of Richmond Law Review

No abstract provided.

Progress In Self-Determination: Navigating Funding For Isda Contracts After Salazar V. Ramah Navajo Chapter, Steven L. Mangold

American Indian Law Review

No abstract provided.

Globalizing Social Finance: How Social Impact Bonds And Social Impact Performance Guarantees Can Scale Development, Deborah Burand

Articles

While the SIB structure is still in its infancy, there is momentum building to globalize this social finance innovation so that it can help scale development goals around the world. Taking the SIB global is not a simple matter, however. This article explores several of the more challenging issues that are likely to arise in applying a SIB or elements of the SIB structure to social problems and development goals in developing countries. The article begins with a summary review of the goals and structures used in the two earliest SIBs. It then discusses key challenges and opportunities that SIBs …

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, …

Anti-Corruption Internationally: Challenges In Procurement Markets Abroad—Part Ii:The Path Forward For Using Procurement Law To Help With Development And The Fight Against Corruption, Daniel I. Gordon

GW Law Faculty Publications & Other Works

This paper, presented at the West Government Contracts Year in Review Conference (covering 2012), discusses developing issues in international public procurement. Among other things, the paper suggests that there is growing recognition of the role that procurement can play in national development and the fight against corruption. In the paper the author points out that, while there is a worldwide trend toward more and more similar procurement systems, that trend does not mean that procurement systems are becoming, or should become, uniform. Moreover, the author contends in the paper that procurement law has only a limited role in national development …

Bid Protests: The Costs Are Real, But The Benefits Outweigh Them, Daniel I. Gordon

GW Law Faculty Publications & Other Works

The author analyzes the costs and benefits of bid protests, with a focus on protests filed at the Government Accountability Office (GAO). The author explains that the costs are often overstated, in that GAO’s reporting methodology leads observers to overstate the number of protests and the frequency of successful protests. The author also reports on research regarding what happens after GAO sustains protests, and indicates that firms that successfully protest to GAO generally do not obtain the contract that was the subject of the protest. The article also explains that the “automatic stay” of procurements triggered by a protest to …

Feature Comment: Considering The Effects Of Public Procurement Regulations On Competitive Markets, Christopher R. Yukins, Jose A. Cora

GW Law Faculty Publications & Other Works

Professor Albert Sanchez Graells of the University of Hull (UK) recently published a vitally important book on procurement law, Public Procurement and the EU Competition Rules (Hart Publishing 2011). In his study, Sanchez Graells asked what seems like a simple question: Shouldn’t regulators, when writing procurement regulations, consider the likely impact of those regulations on competitive markets? Sanchez Graells pointed out that far too little attention has been paid to the anticompetitive impact of public procurement regulation. This article assesses Sanchez Graells’ thesis from a U.S. perspective. In many ways the U.S. federal procurement system stands at one end of …