Government Contracts Commons^™

The Wto Agreement On Government Procurement And The Uncitral Model Procurement Law: A View From Outside The Region, John Linarelli

Scholarly Works

Two of the most significant efforts to bring municipal procurement institutions up to international standards are the WTO Agreement on Government Procurement (GPA) and the UNCITRAL Model Law on Procurement of Goods, Construction and Services. Though the Model Law has had limited adoptions, it enjoys global influence as a source of norms and practices for good public procurement. The GPA, also reflective of international standards, seems to be on the rise, as more WTO members elect to become GPA contracting parties. This article explores two aspects of these instruments. First, the article explores how the Model Law promotes efficient public …

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 …

Bahnken V. New York City Fire Department, Bryanne Kelleher

NYLS Law Review

No abstract provided.

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

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

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 …

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.

An Eleven Year Retrospective Of The Acquisition Review Journal, Mitchell J. Elder

Theses and Dissertations

The purpose of this research was to examine the evolution of the Acquisition Review Journal (ARJ) through its first 11 years of publication. Researchers assessed the Defense Acquisition community through a review of ARJ articles. They considered what areas academics and practitioners have explored, and how they have explored them. This review documents such characteristics as areas of study, methods of study, and contributors. Trends are identified and conclusions are drawn as to the contribution of the ARJ to the Defense Acquisition community of practice.

The Analysis Of Air Force Institute Of Technology Theses Related To Contracting, Thomas M. Clohessy

Theses and Dissertations

At the end of March 2005, the final students will graduate from the Air Force Institute of Technology's (AFIT) contracting graduate degree curricula -- consisting at various times of both contract management and strategic purchasing course sequences -- which have been relocated to the Naval Postgraduate School (NPS). With the end of the contracting graduate programs at AFIT, it is appropriate to ask what contributions AFIT theses have made to the contracting community. Scholars (e.g., Das and Hanfield, 1997) have argued that thesis and dissertation research is one useful method of determining contributions to the field. The author conducted a …

Losing Rights To Intellectual Property: The Perils Of Contracting With The Federal Government, Katherine White

Law Faculty Research Publications

No abstract provided.

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

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

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.

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

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

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 …

Gauging The Cost Of Loopholes: Health Care Pricing And Medicare Regulation In The Post-Enron Era, Elizabeth Weeks Leonard

Scholarly Works

This article explores the problem of risk perception and regulatory loopholes in the unique era of corporate governance that followed Enron and other high-profile corporate scandals. The article draws on behavioral law and economics theory to examine pressing issues in U.S. welfare policy reform. The current Administration's domestic agenda features proposals to privatize traditional government welfare programs, including Social Security and Medicare. Those proposals rely on market competition and other profit incentives to improve quality and reduce program costs. The article traces a detailed case study of a prominent for-profit hospital corporation, the impact of public perceptions of corporate wrongdoing, …

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

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

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.

A State's Power To Enter Into A Consent Decree That Violates State Law Provisions: What "Findings" Of A Federal Violation Are Sufficient To Justify A Consent Decree That Trumps State Law?, David W. Swift

ExpressO

In the last forty years federal courts have played a prominent role in reshaping our public institutions. And while some scholars question the efficacy of these structural injuctions, the authority of federal courts to order such relief is generally unquestioned. What is open to debate, however, is whether state officials can agree to a remedy they would not have had the authority to order themselves; and if so, to what extent must an underlying constitutional violation be proved so as to justify the remedy?

This article discusses the competing theories and concludes that a remedy that violates state law may …

Good Faith In The Cisg: Interpretation Problems In Article 7, Benedict C. Sheehy

ExpressO

ABSTRACT: This article examines the dispute concerning the meaning of Good Faith in the CISG. Although there are good reasons for arguing a more limited interpretation or more limited application of Good Faith, there are also good reasons for a broader approach. Regardless of the correct interpretation, however, practitioners and academics need to have a sense of where the actual jurisprudence is going. This article reviews every published case on Article 7 since its inception and concludes that while there is little to suggest a strong pattern is developing, a guided pattern while incorrect doctrinally is preferable to the current …

Dead Men Telling Tales - A Policy-Based Proposal For Survivability Of Qui Tam Actions Under The Civil False Claims Act, Vickie J. Williams

ExpressO

The civil False Claims Act is a powerful tool used by both the federal government and private citizens, under the statutes "qui tam" or "whistleblower" provisions, to fight fraud against the government. Use of the statute has continually risen in recent years, and recoveries under the statute are in the billions of dollars. The unique relationship between a private citizen whistleblower and the government who both have an interest in the case raises many interesting procedural and substantive issues of federal law. This article proposes an answer to one of these questions. The article proposes that a whistleblower suit survives …

Small Business Participation In Air Force Procurement: Participation Trends And The Effect Of Acquisition Reform Initiatives On Air Force Procurement Via Selected Contract Types In Selected Product Categories, Douglas E. Leedy

Theses and Dissertations

Small Businesses (SB) have been of recognized important to the Federal Government for many years. This thesis explores the role of SB contractors in Air Force (AF) procurement and the effects of recent acquisition reform (AR) initiatives on their involvement, including their method of involvement (contract type), product areas in which they participate, and possible new areas of measurement. This thesis answers the research and investigative questions in three ways. First, it explores the correlation of AR initiatives to SB participation as a whole, via selected contract types, and in selected product categories via causal regression models. Next, it identifies …

2003 Government Contract Decisions Of The Federal Circuit, Douglas L. Patin

American University Law Review

No abstract provided.

Performance Based Service Acquisition (Pbsa): A Dynamic Look At Pbsa In The Air Force, Fred J. Lacey Iv

Theses and Dissertations

Federal procurement has typically focused much of its efforts on the acquisition of products, with acquisition of services not being held in as high of regard. However, recent changes have required the Department of Defense and the US Air Force (USAF) to increase spending on services. This significant increase in spending on services suggests a need to ensure acquisition professionals are prepared to apply sound business judgment to Performance Based Service Acquisition (PBSA) strategies. PBSA involves acquisition strategies, methods, and techniques that describe and communicate measurable outcomes rather than direct performance processes. The Secretary of Defense, in order to ensure …

Going To War With Defense Contractors: A Case Study Analysis Of Battlefield Acquisition, Ryan M. Novak

Theses and Dissertations

The escalating use of contractors on the battlefield in highly critical operational areas is a trend that is increasing across the DoD. Contractors have a vital role supporting CONUS missions, but they are also on the battlefield in defense of our nation, supporting the warfighter and their weapon systems. As the use of contractors on the battlefield continues to gain favor within the DoD, and as contractor s roles continue to expand and become more critical, it is imperative to improve the current way that the DoD, and specifically Air Force acquisition professionals, procure such services. This research analyzes inputs …

Measuring Small Business Participation In Air Force Contracting: The Impact Of Acquisition Reform, William C. Pike

Theses and Dissertations

Congress has mandated the Air Force to reform and streamline its acquisition procedures while promoting participation by small business contractors. Reports on the federal government as a whole suggest that the acquisition reforms have had a negative effect on small business participation, with a declining number of small businesses receiving contract awards. A causal regression model is used to determine that the Air Force has actually increased the number of small businesses receiving contract awards over the past thirteen years and has maintained a steady stream of new small businesses into that group. Variables are tested to determine their effect …

Development Of Measures Of Success For Corporate Level Air Force Acquisition Initiatives, Carey E. Petit

Theses and Dissertations

The goal of this research is to suggest a framework for developing measures of success for corporate level Air Force acquisition initiatives. Because this research is exploratory, it focuses on only one initiative: the 2002 Lighting Bolt initiative Focus on results, not process. A qualitative method approach was used to suggest a four part framework. Through the review of literature, common steps for creating metrics were established and recurrent characteristics of good metrics were identified. Then interviews were conducted with acquisition practitioners who have experience with the initiative. Finally, those three parts were applied to the initiative as a case …