The Nash & Cibinic Report, Volume 36, Issue 12

By Vernon J. Edwards

Addendum by Ralph C. Nash

Numerical (“point”) scoring/rating systems have long been used as a proposal evaluation technique. Once upon a time the use of such systems in the source selection process was common. But after a number of bid protest decisions in the 1970s and 1980s involving numerical scores, some agencies began to restrict or even prohibit their use and mandated the use of adjectival and colorrating schemes instead of numbers.  (December 2022)

Please Read: Numerical Scoring In Source Selection: Lessons To Be Learned

Nash & Cibinic Report, October, 1994

A special column by Vernon J. Edwards, Consultant in Government Contracting

Almost everyone involved with Government contracting can tell a horror story about a “best value” source selection that involved the development of a lengthy and costly proposal, about a source selection that took two years to complete, and about a protest that delayed an important project and increased its costs. Legislators, policymakers, and acquisition managers are currently looking for ways to “streamline” the source-selection process. I would suggest that the single most effective thing
acquisition managers can do to streamline the best value source-selection process is to improve their choices of evaluation factors for award.

Please read:  Streamlining Source Selection by Improving the Quality of Evaluation Factors.
 

* * * * *

Postscript: Streamlining Source Selection by Improving the Quality of Evaluation Factors

Nash & Cibinic Report, December, 1994

Ralph C. Nash and John Cibinic, Professors Emeriti of Law, George Washington University

Professors Nash and Cibinic received two comments on Vern Edwards' article. One was from Bryan Wilkinson, Director, Compliance Guidelines, Teledyne, Inc. and the second was from Steven Kelman, Administrator of the Office of Federal Procurement Policy. The Postscript contains the two comments and the Professors' response. (November 2022)

Please read:  Postscript, Streamlining Source Selection by Improving the Quality of Evaluation Factors

GWU Legal Studies Research Paper No. 44, 2022

GWU Law School Public Law Research Paper No 44, 2022

The Regulatory Review (June 29, 2022)

Jessica Tillipman, George Washington University - Law School

Courtesy of the Social Science Research Network

Published with permission of the author

In recent years, several U.S. government agencies have pioneered the use of artificial intelligence (AI) and other emerging technologies to improve the efficiency and accuracy of their 'responsibility determinations' (reviews of, among other things, contractor representations and certifications, past performance history, civil and criminal settlements, exclusions (such as suspensions or debarments), and contract terminations). As federal agencies continue to think strategically about how to improve processes and reduce risk in their procurements, technology-driven solutions will play a critical role in this undertaking.  (October 2022)

Please Read:  Using AI to Reduce Performance Risk in U.S. Procurement

by Daniel Schoeni, U.S. Air Force JAG Corps

51 Public Contract Law Journal 553 (2022)

September 28, 2022

Courtesy of the Social Science Research Network

Published with permission of the author

Just as the law is increasingly recognized as an important instrument of national power, this article argues that government contracts law should also be recognized as such an instrument. Broadly construed, acquisition law encompasses a host of subjects that bear on national security. This discussion is divided into inward- and outward-facing components. Its inward-facing components are instrumental in nature because they serve as handmaidens to the military and other instruments of national power. Its outward-facing components are intrinsic in nature because various foreign policy tools, including foreign military sales (FMS), are governed by procurement law, making this component an instrument of national power in its own right. This article uses an example from Latin America to illustrate how U.S. laws that authorize, manage, and enforce the FMS program are used to give practical effect to standards of international law and thus to achieve national strategic objectives. It concludes by suggesting that the judge advocates in the Department of the Air Force who specialize in procurement law are perhaps undervalued.  (October 2022)

Please read:  Government Contracts Law as an Instrument of National Power: A Perspective from the Department of the Air Force

Please read:  OFPP: Dead Letters?

by Ike Brannon, The Jack Kemp Foundation

by Chad D. Cotti, University of Wisconsin - Oshkosh

with permission of the authors.

Courtesy of the Social Science Research Network

The nearly sixty-year-old McNamara-O’Hara Service Contract Act (SCA) is a federal statute that governs and regulates service contracts between the federal government and individuals and/or companies. These regulations explicitly govern minimum wage and health/welfare benefits requirements and corresponding contractor compensation. However, several aspects of the SCA’s regulatory structure leave the Federal government (through its contracting partners) in a position where it is less able to recruit and retain a quality workforce.

The regulatory strictures of the SCA impact both the quality of services that Federal contractors are able to provide and implicitly leaves many of the over three million workers employed by government contractors without affordable or quality health and welfare benefits. The recent changes to federal contractor minimum wage mandates have revealed various shortcomings of the SCA, and Congress should consider legislative remedies to alleviate the labor market frictions and notable inefficiencies that have been created in this market.

Please read:  The Need to Reform the McNamara – O’Hara Service Contract Act

by Vernon J. Edwards

Addendum by Ralph C. Nash

The Nash & Cibinic Report

Courtesy of Thompson Reuters

Published with permission of the author

The Federal Government relies on contractors to do its work. It cannot collect taxes, conduct a census, answer questions about Social Security, enforce the laws, react to pandemics or natural disasters or attacks on the homeland, administer foreign aid, develop information technology or weapon systems, or even make war without help from contractors. So, the contracting system is crucially important and must be responsive and effective. Yet the contracting system gets more rule-bound and clunkier every year, clinging to old, time-consuming, timeworn, and tiresome practices despite ever more desperate calls for process innovation. Which brings us to an upcoming National Aeronautics and Space Administration Langley Research Center services acquisition.

Please read:  CONTRACTING PROCESS INTERTIA: The Enduring Appeal Of The Essay-Writing Contest

by Vernon J. Edwards

The Nash & Cibinic Report

Courtesy of Thompson Reuters

Published with permission of the author

Please read:  NEW LIMITATIONS ON SUBCONTRACTING: New Rules, New Uncertainties

GWU Legal Studies Research Paper No. 2021-53

GWU Law School Public Law Research Paper No. 2021-53

Courtesy of the Social Science Research Network

Steven L. Schooner, George Washington University - Law School

Procurement professionals will increasingly be asked to play an important role in adapting to and mitigating the effects of climate change. Unfortunately, we don't have time to waste, either feeling hopeless or waiting for changes to the Federal Acquisition Regulation (FAR) and subsequent efforts to implement new regulations. The time to start progressing up the learning curve is now.

Please Read:  No Time to Waste: Embracing Sustainable Procurement to Mitigate the Accelerating Climate Crisis.  (December 2021)
 

by Vernon J. Edwards

The Nash & Cibinic Report

Courtesy of Thompson Reuters

Published with permission of the author

The Government often says that it wants to do business with commercial firms, but that many commercial firms don't want to do business with the Government. Wonder why? Consider the case of JKB Solutions and Services, LLC, a small business of Norfolk, Virginia, hereinafter “JKB.”  (December 2021)

Please read: Commercial Items: Confusion In Court

The Federal Acquisition Regulation does not define strength.  A definition of weakness was added to the FAR by the FAR Part 15 Rewrite, Federal Acquisition Circular 97-02, 62 Fed. Reg. 51224, 51233 (Sept. 30, 1997). FAR 15.001 thus defines weakness:

So a weakness is a “flaw,” which the OXFORD DICTIONARY OF ENGLISH defines as “a mark, blemish, or other imperfection which mars a substance or object.” That clears things up. And thus we suppose that a strength is a perfection that reduces risk and a significant strength is one that reduces risk appreciably.

FAR 15.001 also defines deficiency:

Please Read:  Postscript: Source Selection Decisions.

A Primer On Source Selection Planning: Evaluation Factors And Rating Methods

by Vernon J. Edwards

Briefing Papers

Courtesy of Thompson Reuters

Published with permission of the author

This is a primer on source selection evaluation factors for award and the rules regarding their selection and use. It is intended for those who plan to use the tradeoff process method of source selection; however, some parts of it may also be of interest to those who plan to use the lowest price technically acceptable method.  (November 2021)

Please Read A Primer On Source Selection Planning: Evaluation Factors And Rating Methods
 

by Vernon J. Edwards

The Nash & Cibinic Report

Courtesy of Thompson Reuters

Published with permission of the author

Two protest decisions show that some Contracting Officers do not understand the difference between evaluating proposals and scoring or rating them and do not understand the proper role of scores or ratings in contractor selection processes.

In Beta Analytics International, Inc. v. U.S., 67 Fed. Cl. 384 (2005), declaratory relief ordered, 2005 WL 3150612 (Fed. Cl. Nov 23, 2005), 47 GC ¶ 524, the U.S. Court of Federal Claims decided a postaward bid protest in favor of the plaintiff because the source selection official relied on unsupported average scores in making her decision. In YORK Building Services, Inc., Comp. Gen. Dec. B-296948.2, 2005 CPD ¶ 202, 47 GC ¶ 537, the Comptroller General sustained the protest because the source selection official relied on unsupported total scores to make a decision that was inconsistent with the terms of the Request for Proposals.  (November 2021)

Please Read SCORING OR RATING IN SOURCE SELECTION: A Continuing Source Of Confusion.

Briefing Papers No. 21-10 (Thomson Reuters, 2d Series, Sept. 2021).

GWU Legal Studies Research Paper No. 2021-44

GWU Law School Public Law Research Paper No. 2021-44

Courtesy of the Social Science Research Network

Steven L. Schooner
George Washington University - Law School

Evan Matsuda
The George Washington University - Law School; The George Washington University - Elliott School of International Affairs

To the extent that the federal procurement process features prominently in the Government’s plan to slow the pace of, and adapt to the effects of, climate change, this paper attempts to provide some basic building blocks for acquisition professionals to practice sustainable procurement. The paper offers a list of key sustainable procurement vocabulary and introduces a number of key concepts so that the acquisition community can build a common body of knowledge (BOK) to accelerate its progress up the learning curve of sustainable procurement implementation.

The paper also highlights a number of existing tools and resources to help translate those concepts into practice. The paper suggests a broad range of actions and initiatives for those throughout the Government contracts community to begin incorporating environmental sustainability into their procurement policies and practices.

The Federal Government neither needs to, nor does it have time to, reinvent the wheel. Fortunately, much has been done - both within the Government and throughout the private sector - that can and should inform early implementation efforts.  (October 2021)

Please Read:  Sustainable Procurement: Building Vocabulary To Accelerate The Federal Procurement Conversation.

by Vernon J. Edwards

Briefing Papers

Courtesy of Thompson Reuters

Published with permission of the author

A contract must identify what is to be delivered or done and designate the terms that apply to each such obligation. So how are contractual obligations—duties and rights—to be arranged in a contract document? What ties everything together? The answer is what the Federal Acquisition Regulation (FAR) refers to as line items or contract line items. Line items are the organizing component, the center of mass, of every Government contract.  October 2021)

Please Read:  Contract Line Items

(Thomson Reuters), No. 20-13 (Dec. 2020).

Courtesy of the Social Science Research Network

GWU Legal Studies Research Paper No. 2021-04

GWU Law School Public Law Research Paper No. 2021-04

Christopher R. Yukins, George Washington University - Law School

Abraham Young

Kristen E. Ittig, Arnold & Porter

Eric Valle

The U.S. General Services Administration (GSA) opened a new chapter in public procurement by awarding three contracts—to Amazon Business, Overstock.com, and Fisher Scientific—that will allow federal users to buy directly from online electronic marketplaces, with sales anticipated to total $6 billion annually. This proof-of-concept effort, dubbed the “commercial platforms” initiative by GSA, marks a radical departure from traditional procurement practices because it will allow individual Government users (not necessarily procurement officials) to make “micro-purchases” (generally up to $10,000) using Government purchase cards. By removing the federal procurement system as an intermediary in the purchasing process, and in essence outsourcing the selection of available sources to private providers of electronic platforms, GSA’s initiative has both reshaped procurement and potentially redrawn a marketplace. This paper reviews the purpose and history of GSA’s commercial platforms initiative, which began with a mandate from Congress to explore electronic commerce options and evolved through long exchanges with industry, users, and other stakeholders. In assessing the reasons for the initiative, the paper notes a longstanding concern (framed by principles of agency theory) that users’ needs were not being met by the traditional procurement system. The paper discusses GSA’s decision to steer the initiative to existing commercial platforms and reviews key elements of the solicitation used to frame the “no-cost” contracts with the online marketplaces. Because Amazon Business was by far the most prominent of the awardees—indeed, Amazon had played an ongoing role in pressing for the procurement—and vendors may want to sell through the commercial platforms to reach federal customers, this paper focuses on Amazon Business’ procedures in discussing how vendors might join the commercial platforms. The paper concludes with a series of Guidelines that vendors and other market participants might use, as they enter this new corner of the federal marketplace.  (February 16, 2021)

Please Read:  GSA’s Commercial Marketplaces Initiative: Opening Amazon and Other Private Marketplaces To Direct Purchases By Government Users, Briefing Papers.
 

by Vernon J. Edwards

The Nash and Cibinic Report,

Courtesy of Thompson Reuters

Published with permission of the author

Sooner or later, someone asks: What is the difference between a performance work statement (PWS) and a statement of work (SOW)? Good question.  (February 3, 2021)

By Steven L. Schooner, George Washington University Law School

GWU Legal Studies Research Paper No. 2020-72

GWU Law School Public Law Research Paper No. 2020-72

Courtesy of the Social Science Research Network

One of the more common rules in federal government procurement is that the Government may describe its needs to the private sector by specifying a “brand name” product, as long as the Government adds the words “or equal” to the brand name and articulates the product’s salient physical, functional, or performance characteristics that are essential to the Government’s needs. This broadens the potential for competition and helps reduce the government's reliance on unduly restrictive specifications.

Two recent examples - one the subject of a GAO bid protest decision, the other a recently posted commercial-item procurement - suggest that, while some basic, longstanding, foundational issues in federal procurement remain largely unchanged, that doesn't mean they are not ignored.  (October 2020)

Please Read:  Brand Name or Equal: Without "Equal," It's Not Competitive

Vernon J. Edwards

The Nash and Cibinic Report,

Courtesy of Thompson Reuters

Published with permission of the author

Frictionless acquisition is now a part of the “President’s Management Agenda.”  (September 2020.)

Please Read:  FRICTIONLESS ACQUISITION: A New Initiative by the Office of Federal Procurement Policy

Robert Antonio, Wifcon.com

Many years ago, as a teen, I noticed a magazine on a barbershop table with an incredible black airplane on the cover. Huge engines on each side of a delta wing and a long thin fuselage with a cockpit near the front. I never forgot that airplane, it was an SR-71 Blackbird. Now, 55 years later, I'm writing a brief article about the first Blackbird -- the A-12. It's the fastest and highest flying jet airplane that was ever built.

Everything about the A-12 was incredible. Imagine this. A requirement is developed to: make an airplane so fast that nothing can catch it, make it fly so high that nothing can reach it, and make it nearly invisible. Add to that the fact that no one knew how to do it, the materials didn't exist, and it had to be done quickly. How about a few names for good measure: Groom Lake, Area 51, Kelly Johnson and his Skunk Works . . . That's the story of how the A-12 was conceived, finally built, and then flown. Before I write about the A-12, I need to provide some perspective on the times in which it was born.  (September 2020.)

Please Read:  Faster Than A Speeding Bullet, Three Times Higher Than The Tallest Mountain

Jessica Tillipman and Vijaya Surampudi

49 Pub. Cont. L.J. 217 (2020).

GWU Legal Studies Research Paper No. 2020-12

GWU Law School Public Law Research Paper No. 2020-12

Courtesy of the Social Science Research Network

Over the past decade, the anti-corruption, ethics, and compliance landscape has changed dramatically. This is a direct consequence of a global anti-corruption enforcement effort led by the United States through its enforcement of the Foreign Corrupt Practices Act. The increase in enforcement has also been spurred by the adoption of several multilateral anti-corruption agreements, such as the Organization for Economic Co-operation and Development (OECD) Anti-Bribery Convention and the United Nations Convention Against Corruption (UNCAC). These agreements have spurred several countries to enact anti-corruption laws, such as the U.K. Bribery Act, Brazil’s Clean Company Act, and France’s Loi Sapin II. The laws prohibit, among other things, the bribery of foreign government officials. They also encourage companies to dedicate resources to developing anti-corruption compliance programs and maintaining robust internal controls.  The increase in anti-corruption enforcement has profoundly impacted large, multinational corporations. Many of these companies have responded to the enforcement increase by investing heavily in sophisticated compliance programs designed to prevent or mitigate liability for anti-corruption violations. The development of rigorous internal compliance programs has been particularly pronounced in the defense industry, especially among large, U.S. defense contractors.

Unlike their large counterparts, many small government contractors are largely unable to keep up with the rapidly evolving trends and best practices in ethics and compliance. Their inattention to this critical area leaves them at risk for compliance failures, fraud, and corruption. As a result, small contractors are more likely than their large counterparts to be debarred from the U.S. procurement system.  Despite the harsh consequences of compliance deficiencies, few small contractors are likely to dedicate resources to the development of vital compliance policies and internal controls because of the reality of limited resources. This has created a critical gap in the defense industry supply chain, as many large contractors may partner with small companies that lack the sophistication and resources necessary to ensure compliance with the many government contracts compliance requirements.

One solution to this growing problem is to incentivize large government contractors to help their small subcontractors develop compliance programs. The incentives, of course, must be substantial enough to convince large contractors to share their confidential and proprietary compliance programs and best practices.  Fortunately, a model for this type of arrangement exists in the U.S. procurement system. The “mentor-protégé” program is designed to help small businesses navigate the immense government contracts regulatory system.  Under this program, generally a larger, more experienced contractor serves as a “mentor” to a smaller contractor (the “protégé”). The mentor, among other things, guides the protégé through the complex procurement regime by sharing expertise and resources. In return, the mentor is provided with contractual opportunities and incentives by the U.S. Government.  This model could benefit companies in the compliance space by providing a mechanism for contracting parties to exchange information and ensure transparency throughout all levels of the procurement process.

This article recommends incentivizing large businesses to utilize their vast resources to assist their small business partners with the development of internal ethics and compliance programs in order to improve the overall integrity of the government procurement system. It analyzes the development of global anti-corruption compliance standards through an overview of noteworthy changes in laws, regulations and enforcement, as well as the current compliance risks that large companies face when contracting with smaller companies who lack robust compliance systems and internal controls. The article concludes by recommending the adoption of a corporate mentor-protégé program that incentivizes larger companies to dedicate resources to helping smaller contractors develop anti-corruption compliance programs.  (June 2020)

Please read:  The Compliance Mentorship Program: Improving Ethics and Compliance in Small Government Contractors. 
 

Daniel Schoeni, U.S. Air Force JAG Corps

Courtesy of the Social Science Research Network

The Transatlantic Trade and Investment Partnership (TTIP) promises to liberalize trade between the European Union and the United States. Although the negotiations have so far excluded defense, this essay considers what would happen if a TTIP removed overt restrictions. What barriers would remain? Sue Arrowsmith has observed that the unfamiliarity of a foreign government's public procurement regimes can create "structural restrictions" and Steve Schooner and Chris Yukins have in turn observed that such structural restrictions can "raise practical barriers to entry as foreign vendors run headlong into dense and alien procurement regimes." This essay diagnoses some of these subtle barriers and prescribes remedies to foster greater cross-border competition in transatlantic defense procurement.  (May 2020)

Please read:  On the Non-Tariff Barriers Obstructing Free Trade in the Transatlantic Defense Procurement Market.

Vernon J. Edwards

Courtesy of Thomson Reuters and The Nash & Cibinic Report

If you were to read the Request for Proposals for the Department of Defense’s Joint Enterprise Defense Infrastructure (JEDI) acquisition, issued on July 26, 2018 (the source selection is still underway), you might notice a strange thing.  (March 2020)

Please Read:  The JEDI Acquisition:  Innovation Rejected

Judith Hermis, Naval Postgraduate School

Stephen Hansen

Courtesy of the Social Science Research Network

In 2016, the U.S. Federal government procured goods and services totaling $460 billion, or over two percent of America’s gross domestic product.  Innovation is a key goal of Federal procurements, but the extent to which the acquisition process cultivates private-sector innovation is unclear. We provide evidence on the extent to which the acquisition process is associated with investments in innovation. To shed light on this relationship, we use a hand-collected dataset of individual government contracts awarded between 2011 and 2016 and find that firm-level innovation increases with the extent of government business. Additional analyses show that the government purchases innovation at rates comparable to innovation procured by private-sector customers. Finally, we develop a new measure that allows researchers to rank firms on the intensity of public-sector versus private-sector innovation. Tests deploying this tool show that firms with the most (least) research and development on government (relative to private) contracts produce innovative goods such as missiles (socks). Taken together, our results suggest that Federal acquisitions appear to motivate innovation at levels that are appropriate to the nature of requisitioned goods or services. These results should be of interest to practitioners and acquisition personnel who serve a common goal of efficiently deploying a finite pool of taxpayer-generated revenues to the most productive use.

Please read:  Innovation for Hire: A Descriptive Study of Federal Acquisitions and Contractor R&D.

David S. Rubenstein, Washburn University - School of Law

UCLA Law Review, Vol. 67, 2020 (Forthcoming)

Courtesy of the Social Science Research Network

The federal government has always contracted with private entities for mundane goods and services (e.g., pencils, laundry service, construction, and so on). Today, however, private actors implement major federal programs and exercise decisional authority in ways traditionally performed by federal actors. Public-law scholars have decried privatization’s distorting effects on constitutional rights, separation of powers, and administrative law. Missing from the literature, however, is a corresponding account for federalism. This Article pivots into that neglected space, with some urgency. In statehouses and courthouses around the county, politicians and advocacy groups aim to hold federal contractors accountable to state law. For example, recently enacted state laws seek to regulate private immigration detention facilities. Meanwhile, other states have passed laws targeting private entities that service federal student loans. Against these initiatives, the federal government and its contractors argue that state law is displaced not only by federal law, but also by federal contracts and implied constitutional immunities.

Asked whether federal contracts can displace state law, most if not all jurists and scholars would say ‘no'—only federal law can trump state law. That is right in theory but wrong in practice. In undertheorized and outmoded precedents, the Supreme Court has held that federal contracts can preempt state law (“preemption by contract”), and that federal contractors can be constitutionally immune from state regulation (“privatized immunity”). Following the Court’s lead, the federal government and its contractors portray these doctrines of “Supremacy, Inc.” as everyday federalism.

This Article rejects that premise and sounds the alarm. In our era of privatized governance, contractors may stand in for federal officials. But contracts need not, and should not, substitute for federal law. Efficiency is the coin of federal outsourcing, and the most efficient way to displace state law is by contract. Although the Supremacy Clause has been liberally construed in other contexts (for example, to give preemptive force to administrative regulations), the displacement of state law by federal contracts is a step too far. If accountability to state law interferes with programmatic efficiencies, that is a fair constitutional price for outsourced governance. Should the nation not wish to pay it, the government can shield contractors with federal laws—which are the “supreme Law of the Land.”

Please read:  Supremacy, Inc.

Introduction by Vernon J. Edwards:

I think I can safely say that Gordon Wade Rule was the most famous and respected U.S. contracting officer in history. He retired from Government service as chief of the Navy’s Procurement Control and Clearance Division in 1977 and died of cancer at the age of 75 in Washington D.C. in 1982. In an obituary, The Washington Post described him as “an iconoclastic Navy cost-cutter who excoriated cabinet members, admirals and senior legislators he viewed as obstructers of his relentless war on waste and unaccountability in weapons buying.”  March 2019

Please read:  Professional Reading: Negotiating Advice from Gordon Wade Rule

Lieutenant Colonel Daniel Schoeni, U.S. Air Force

Courtesy of the Air & Space Power Journal

The DOD’s technological edge is eroding. Since 2015, the department has pursued a strategy to regain the lead. During the Obama administration, it was called the Third Offset. The Trump administration has abandoned that nomenclature, but it is pursuing the same objective. The DOD seeks dominance in  robotics, artificial intelligence, autonomous systems, and three-dimensional printing, among other fields. It recognizes, however, that such innovation will not come from the usual sources—government labs or the defense industrial base. Nondefense firms have a decisive lead: "the center of gravity in cutting edge, military applicable research is shifting abruptly away from the defense establishment to relatively new commercial firms."  The DOD must engage with these nondefense firms to build the next generation of weapon systems. But how should it do so?

Please read:  Three Competing Options for Acquiring Innovation.

By Lieutenant Colonel Daniel Schoeni, U.S. Air Force, JAG Corps, Judge Advocate

Administrative Law Review

Courtesy of the Social Science Research Network

In several strategy documents, the Department of Defense has suggested that it may experiment with public-private partnerships (P3s) as catalysts for innovation. This policy is misguided. P3s may prove especially disappointing if they are merely a neologism for a continuation of the same old policies that facilitate sole-source contracts whose lifecycles span decades. Open systems architecture, by contrast, has the potential to disrupt the defense industry and to facilitate the sort of competition that safeguards the public fisc, delivers better value, and stimulates innovation.

Please read:  Whither Innovation?: Why Open Systems Architecture May Deliver on the False Promise of Public-Private Partnerships.

By Delphine Samuels, Assistant Professor of Accounting, Massachusetts Institute of Technology (MIT) - Economics, Finance, Accounting (EFA)

Courtesy of the Social Science Research Network

The government monitors its suppliers’ internal information processes to reduce uncertainty about the suppliers’ ability to fulfill their commitments. In this paper, I argue that these monitoring procedures improve the suppliers’ internal information, which in turn leads to higher quality external reporting. Using a dataset of U.S. government contracts, I find a positive relation between government contract awards and the quality of firms’ external reporting environment. Consistent with government monitoring of internal information processes driving this relation, I find that firms improve their external reporting when they first begin contracting with the government, and that the magnitude of the improvement varies predictably with contract characteristics that entail a greater degree of government scrutiny. Finally, I use the establishment of the Cost Accounting Standards Board (CASB) in 1970 as an exogenous shock to contractor monitoring, and find greater improvements in the external reporting environment among firms affected by the CASB’s monitoring requirements. Overall, these results suggest that monitoring by the government as a customer plays a role in shaping the firm’s information environment.  (July 2018)

Please read:  Government Procurement and Changes in Firm Transparency.

By Christopher R. Yukins, George Washington University Law School,

UPPHANDLINGSRÄTTSLIG TIDSKRIFT 69

GWU Law School Public Law Research Paper No. 2017-75

GWU Legal Studies Research Paper No. 2017-75

Courtesy of the Social Science Research Network

The U.S. procurement market is one of the largest in the world, and the procurement law which guides that market, a regulatory regime which is both complex and mature, offers important lessons for other procurement systems around the world. This article provides a modest introduction to U.S. procurement law – especially federal procurement law, which generally is more extensively developed than state or local procurement law – and suggests possible lessons learned that may be useful for other systems. The article proceeds in several parts. The article reviews the history of the federal procurement system, which can be traced to the Revolutionary War, and the separate contract administration regime that the federal government has developed. The article discusses access to the market and the leading procurement methods, with a special emphasis on the multilateral competitive negotiations which had, by the end of the twentieth century, become a mainstay of complex federal procurements. The article reviews the leading contract types in U.S. procurement, and explains the strategic advantage that the United States gains through an effective cost-reimbursement contracting system. Finally, the article discusses bid challenges (called “bid protests” in the United States) by disappointed bidders, and reviews other anti-corruption strategies used in the U.S. system.  (February 26, 2018)

Please read:  The U.S. Federal Procurement System: An Introduction. 

Does the FAR Apply to Federal Contractors? No!

By Christoph Mlinarchik, JD, CFCM, Owner, Christoph LLC  (biography)

Copyright 2017, National Contract Management Association. Posted with permission.

This article dispels myths in Federal Acquisition Regulation (FAR) applicability and clause selection in the contracting profession. No contracting professionals can accept or spread myths about the FAR. There is no place for misconceptions, misunderstandings, rumors, legends, or outright falsehoods in the contracting profession. Our mission is to educate our colleagues—especially the less-experienced members of the workforce—on sound contracting principles. With this in mind, it’s time to dispel a couple of deeply rooted government contracting myths.  (11/2017)

Please read:  Does the FAR Apply to Federal Contractors? No!

By Vernon J. Edwards & Ralph C. Nash

This material from The Nash & Cibinic Report has been reproduced with the permission of the publisher, Thomson Reuters. Further use without the permission of the publisher is prohibited. For additional information or to subscribe, call 1-800-344-5009 or visit Thompson Reuters Legal Solutions.  The Nash & Cibinic Report is now available on Westlaw. Visit westlaw.com. 

In Our Competitive Negotiation Process: It’s Expensive!, 30 NCRNL ¶ 49, and Overruling Egregious Contracting Officer Conduct: The Court Finds a Way, 31 NCRNL ¶ 7, Ralph discussed protests filed by Level 3 Communications LLC against an acquisition conducted by the Defense Information Systems Agency (DISA) for telecommunications work in the Middle East.  The company first protested to the Government Accountability Office, which denied its protest. Level 3 Communications LLC, Comp. Gen. Dec. B-412854, 2016 CPD ¶ 171, 2016 WL 3568223. The company then protested to the U.S. Court of Federal Claims on expanded grounds. Level 3 Communications, LLC v. U.S., 129 Fed. Cl. 487 (2016). The court:

(1) granted Level 3’s motion for judgment on the administrative record,

(2) issued an injunction to stop contract performance,

(3) awarded proposal preparation costs,

(4) advised the Government to show cause why it did not violate Rule 11(b) of the Rules of the U.S. Court of Federal Claims by making misleading statements to the court,

(5) ordered the agency to provide its acquisition files to the Inspector General of the Department of Defense for further investigation, and

(6) announced its intention to forward the public record in the case to the Senate Armed Services Committee.

BOOM!  (3/29/17)

Please read:  CONTRACT FORMATION WITHOUT CONVERSATION: How Do You Do That? Why Would You Want To?

By Vernon J. Edwards & Ralph C. Nash

This material from The Nash & Cibinic Report has been reproduced with the permission of the publisher, Thomson Reuters. Further use without the permission of the publisher is prohibited. For additional information or to subscribe, call 1-800-344-5009 or visit Thompson Reuters Legal Solutions.  The Nash & Cibinic Report is now available on Westlaw. Visit westlaw.com.

Everyone knows that the Federal Acquisition Regulation applies to Government acquisitions.  But what does that mean, exactly? Applies to what? To whom? How? It appears that there is some confusion, as can be seen in a recent decision by the Armed Services Board of Contract Appeals, Lockheed Martin Integrated Systems, Inc., ASBCA 59508, 2016 WL 7655944 (Dec. 16, 2016). The case involved disputes under two support services contracts.  (2/1/17)

Please read:  THE FAR: Does It Have Contractual Force And Effect?

By Ralph C. Nash & Vernon J. Edwards

This material from The Nash & Cibinic Report has been reproduced with the permission of the publisher, Thomson Reuters. Further use without the permission of the publisher is prohibited. For additional information or to subscribe, call 1-800-344-5009 or visit Thompson Reuters Legal Solutions.  The Nash & Cibinic Report is now available on Westlaw. Visit westlaw.com.

In 2013, the General Services Administration devised a new source selection technique to select contractors for its One Acquisition Solution for Integrated Services (OASIS) Government-wide acquisition contracts (GWACs). After winning a protest in Octo Consulting Group, Inc. v. U.S., 117 Fed. Cl. 334 (2014), the GSA has announced that it intends to use this new technique on the follow-on ALLIANT GWACs. These indefinite-delivery, indefinite-quantity contracts are so important that a detailed analysis of this new technique is warranted.  1/29/17

Please read:  "HIGHEST TECHNICALLY RATED OFFERORS WITH FAIR AND REASONABLE PRICING”: A New Source Selection Technique.

By Christoph Mlinarchik, JD, CFCM, Owner, Christoph LLC  (biography)

Copyright 2016, National Contract Management Association. Posted with permission.

For the first time ever, GAO chose to ban a protestor from filing any bid protests with GAO for a period of one year. But was GAO's sanction against this protestor justified? Will it withstand scrutiny? Does GAO actually possess the power to put both a protesting firm and its principal into a 365-day "time out" from filing any bid protests? This article examines this GAO decision, GAO's justifications for its action, and the powers granted to GAO through statute and regulation-- and also features an interview with the principal of the banned firm to hear the other side of the story.

Please read:  How Many Bid Protests Is Too Many?

By Christoph Mlinarchik, JD, CFCM, Owner, Christoph LLC  (biography)

Contracting professional need precision in words and terms, as contract interpretation turns on minute differences in terminology and definitions.  Misuse of terms of art in the contracting profession leads to confusion, misunderstanding, and pernicious misconceptions.  Clarity in contracting language improves professionalism and avoids inefficient or wasteful procedures.  Read on to explore several flagrantly abused terms of art regarding justifications and scope of the contract.

Please read:  Sticks and Stones: How Words and Terms of Art Can Hurt the Contracting Profession.

By Christopher E. Harris, CFCM, CPCM

Acquisitions conducted under the authority of FAR 8.405-2, "Ordering Procedures that Require a SOW" often resemble negotiated procurements. Even though 8.405-2 acquisitions are not governed by FAR 15, the standards generally applicable to negotiated procurement may apply. This paper highlights where the standards are the same and where deviations are allowable. In addition, this paper offers suggestions on how the contracting officer may implement simplified procedures without violating applicable standards.

Please read:  FAR 8.405-2 Acquisitions vs. FAR 15 Negotiated Procurement
 

By Christopher E. Harris, CFCM, CPCM

In today’s complex operational contracting environment, there are competing goals that must be balanced in order to forge optimal solutions. Arguably the four most important goals in acquisition are: competition, obtaining goods and services at fair and reasonable prices; providing maximum practicable opportunity for small businesses; and ensuring the highest-quality mission execution. To deliver viable solutions, the contracting professional must have a sound understanding of the laws, regulations, and policies that affect execution of contract requirements—especially during the requirements formation and source selection phase of an acquisition. The correct application of the law results in the elimination of unnecessary steps in the acquisition process and allows the contracting professional to deliver cutting-edge solutions while accomplishing most—if not all—of the Government’s priorities.

The key to successfully balancing these important priorities is knowledge-based action. In order for contracting knowledge to be actionable, it must inform the contracting professional of what is required. Once contracting professionals know what is required, they are equipped to know what is optional and the range of solutions that may be crafted to meet the Government needs. This foundational understanding is the engine of innovation and efficiency. A contracting professional armed with actionable knowledge is now prepared to navigate the laws and regulations based on what they actually say vice operating in accordance with urban legend. This makes the contracting professional a better collaborator/negotiator with other stakeholders (whose assertions are sometimes contrary to law and regulation) in the acquisition process and equips them to deliver products and services effectively while delivering maximum value to the tax payers.

This treatise will focus on market research and acquisition planning in the Federal Supply Schedule and open market because these activities are arguably the most important activities that are performed in an acquisition, but they are also the two areas where inaccuracies are perpetuated and wasted effort abounds. The traditional processes and efforts are lauded as thorough, complete and conscientious, but these methods often obstruct the execution of requirements in the most optimal manner. That is—in a way that furthers an optimal mix of Government priorities.  (February 2015)

Please read Market Research--A Tale of Two Markets
 

Gifts, Hospitality & the Government Contractor

By Jessica Tillipman, The George Washington University Law School

Briefing Papers, Westlaw.com

Courtesy of the Social Science Research Network

The government procurement process demands the highest commitment to ethical and unbiased conduct. To ensure that the individuals involved in the procurement process adhere to these standards, government entities in nearly all jurisdictions around the world have enacted codes of conduct, ethical restrictions, and anti-corruption laws designed to protect the integrity of government and ensure that government officials act impartially and do not give preferential treatment to any private organization or individual. To further these goals, most jurisdictions have enacted restrictions on the gifts and hospitality that government officials may accept from individuals and organizations that sell goods and services to the government.

While gifts and hospitality play an important role in facilitating and strengthening business relationships in the private sector, in the public sector, common business courtesies may appear as an attempt to influence a government official and the procurement process. This concern is not unfounded. Most public corruption cases involving government contractors include references to the offering of lavish gifts, meals, travel, or entertainment to government officials.

Moreover, nearly all governmental bodies have enacted ethical restrictions that limit the gifts and hospitality that may be accepted by government officials — even in the absence of intent to influence a government official. Indeed, these restrictions are often even more stringent for government procurement officials.

Ethics and anti-corruption laws vary dramatically depending on the jurisdiction. Consequently, determining the applicable rules for a particular government entity can be incredibly challenging. To assist contractors with this process, Part I of this Briefing Paper provides an overview of the laws and policies that restrict the offering or giving of gifts and hospitality to government officials. Part II addresses the severe consequences that may result when contractors offer or give gifts and hospitality to influence an official action. Part III offers practical suggestions regarding the policies and procedures that a government contractor may implement to reduce the risk of violating these laws.   (November 2014)

Please read:  Gifts, Hospitality & the Government Contractor.

By Christoph Mlinarchik, JD, CFCM, Owner, Christoph LLC  (biography)

Originally published in National Contract Management Association's (NCMA, www.ncmahq.org) Contract Management magazine.

Are you ready to step up into a leadership position? Are you a critical and strategic thinker? Do you have excellent research, writing, and analytical skills? Can you synthesize competing interests, duties, and motivations to get the job done within an acceptable range of cost, schedule, and performance? If so, the contracting profession needs you now more than ever. However, this is merely the bare minimum to be an effective professional. Such talents and skills are necessary, not sufficient, to be a superstar in the profession. This article explores the attributes, motivations, and talents of superior contracting professionals-the leaders, innovators, and superstars.   (August 2014)

Please read:  Secrets of Superstar Contracting Professionals

By Steven L. Schooner, George Washington University Law School and Nathaniel E. Castellano, George Washington University Law School

Courtesy of the Social Science Research Network

This review commends The Dream Machine to a broad range of readers, including public contracts attorneys, acquisition policy officials, contracts professionals, program managers, government procurement law students, as well as consumers of military history. It’s a remarkable story told with style. The review juxtapose some aspects of the author’s exhaustive case study of this seemingly problematic program against the Defense Department’s nascent effort to assess the performance of the Defense Acquisition System. The authors make no secret of their belief that DoD’s acquisition performance assessment has the potential to become one of the most significant recent developments in defense acquisition. Among other things, the review essay highlights some particularly informative or entertaining aspects of the book. Ultimately, the essay concludes by focusing on the ultimate question that the authors hope DoD chooses to address more broadly in its future performance assessment: is the V-22 a success story, a cautionary failure, something in between, or none of the above? The authors' concern is that DoD might be asking the wrong questions.  (May 2014)

Please Read:  Review Essay: Reading the Dream Machine: The Untold Story of the Notorious V-22 Osprey, by Richard Whittle, in Light of the Defense Acquisition Performance Study.

By Daniel I. Gordon, George Washington University Law School

Courtesy of the Social Science Research Network

This paper reports on research into what happens in procurements that are protested to the U.S. Government Accountability Office, after GAO dismisses the bid protest because the contracting agency has advised GAO that it is taking 'corrective action.'

The Government Accountability Office recently issued its annual bid protest report, which contains data of great interest to agencies, contractors and counsel who practice in front of GAO. Transparency has been a hallmark of GAO and its bid protest process ever since the office, then called the General Accounting Office, issued its first published bid protest decision, Autocar Sales & Serv. Co., 5 Comp. Gen. 712, in 1926.  (May 2014)

Please read:  Dissecting GAO's Bid Protest 'Effectiveness Rate'

 

By Steven L. Schooner, George Washington University Law School and David J. Berteau, Center for Strategic and International Studies, Defense Industrial Initiatives Group

West Government Contracts Year in Review Conference - Covering 2013

Courtesy of the Social Science Research Network

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 Department Better Buying Power Initiative (now in version 2.0) and acquisition performance measurement (or metrics), the acquisition workforce, cyber-security, scandals and the toxic contracting environment, and contractor fatalities.  (May 2014)

Please read:  Emerging Policy and Practice Issues (2014)

 

By Daniel I. Gordon, George Washington University Law School and Gabriella M. Racca, University of Turin Department of Management

Courtesy of the Social Science Research Network

Ensuring the integrity of procurement processes is instrumental to reaching an efficient allocation of social resources. Although this applies to any procurement system, the concrete implementation varies across different regulatory systems. This article clarifies – as a chapter of a forthcoming book – the main differences between the US and the EU systems in tackling the integrity issue. It focuses on the differences between the two systems’ contractor selection models and emphasizes the extent to which each system allows for subjective evaluation methods by linking the latter to accountability and transparency requirements.  (May 2014)

Please read:  Integrity Challenges in the EU and U.S. Procurement Systems

By Jessica Tillipman, The George Washington University Law School

Courtesy of the Social Science Research Network

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 government’s nuanced best interests, certain members of Congress continue to propose unnecessary, and in many instances counterproductive, legislation designed to fundamentally overhaul the debarment regime, often undermining contractor due process rights in the process. This article provides a sharp critique of recent congressional initiatives designed to transform the suspension and debarment regime into a punitive and non-discretionary sanction.

Please read:  The Congressional War on Contractors

By Christoph Mlinarchik, JD, CFCM, Owner, Christoph LLC  (biography)

Source selections always carry the risk of litigation. The bad news is there is no way to eliminate the possibility of a protest because the cost is minimal—some describe it as the price of a postage stamp. The good news is there are ways to conduct source selections to minimize the likelihood of a protest. Take advantage of the following acquisition strategies to avoid litigation and save time and money.

Losing offerors are prime protest candidates. They have nothing to lose and everything to gain. The post-award debriefing of offerors is the Government’s opportunity to extinguish any flickers of doubt about the fairness of the source selection, so get it right and keep it tight. The debriefing session should not display any signs of inconsistency or ambiguity. Diligent debriefings deter protests by demonstrating the fairness and impartiality of the source selection process and award decision.

Please Read:  Dangers of Source Selections: Debriefings

By Christoph Mlinarchik, JD, CFCM, Owner, Christoph LLC  (biography)

Strangely enough, the Contract Disputes Act of 1978 (CDA) does not define its most important term—"claim." As a result, courts look to the Federal Acquisition Regulation (FAR) for guidance. FAR 2.101 defines a claim as a "written demand or written assertion by one of the contracting parties, seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to a contract." Superficially, this definition resembles a Request for Equitable Adjustment (REA). However, there are subtle yet consequential distinctions between claims and REAs.  (April 2013)

Please read: What’s in a name: REA versus claim.

By Daniel I. Gordon, George Washington University Law School

Courtesy of the Social Science Research Network

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 GAO rarely stays in place for the maximum allowable time. The author also addresses the benefits of protests, such as the increase in transparency and accountability that they bring.  (March 2013)

Please read:  Bid Protests: The Costs are Real, but the Benefits Outweigh Them

By Steven L. Schooner, George Washington University Law School and David J. Berteau, Center for Strategic and International Studies, Defense - Industrial Initiatives Group

Courtesy of the Social Science Research Network

West Government Contracts Year in Review Conference - Covering 2012

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, outsourcing versus insourcing, the continued Defense Department Better Buying Power Initiative (now in version 2.0), the acquisition workforce, the PSC Acquisition Survey, and contractor fatalities.  (March 2013)

Please read: Emerging Policy and Practice Issues

By Christoph Mlinarchik, JD, CFCM, Owner, Christoph LLC  (biography)

The Contracting Officer’s Final Decision (hereafter "Final Decision") is an incredibly important document because it is the Government’s initial response to a contractor’s claim under the Contract Disputes Act. It serves as the Government’s opening move in the claim process and sets the stage for future litigation. The Final Decision is binding and conclusive unless the contractor appeals it, so it deserves careful consideration.

The Final Decision has five substantive requirements. It must (1) describe the claim or dispute, (2) refer to the relevant contract terms, (3) outline the facts, (4) state the decision and rationale of the Contracting Officer, and (5) advise the contractor of its appeal rights. The Final Decision must demand payment if it finds that the contractor is indebted to the Government. Finally, the Final Decision must be submitted to the contractor in writing.  (January 28, 2013)

Please read: Crafting Compelling Contracting Officer’s Final Decisions  (MS Word)

By Jessica Tillipman, The George Washington University Law School

Courtesy of the Social Science Research Network

“A House of Cards Falls: Why ‘Too Big to Debar’ is All Slogan and Little Substance” is a critical response to the article, "FCPA Sanctions: Too Big to Debar" by Drury D. Stevenson and Nicholas J. Wagoner, which aptly demonstrates a common, yet fundamentally flawed understanding of the FAR 9.4 suspension and debarment regime. "Too Big to Debar" asserts that when large government contractors violate the Foreign Corrupt Practices Act (FCPA), they should be “punished” by being debarred from the procurement system. Indeed, despite FAR 9.4’s clear directive to use debarment only for the purpose of protecting the government, not to punish past misconduct, "Too Big to Debar" completely disregards this fundamental tenet of the suspension and debarment regime (and the regulation’s plain language) by repeatedly referring to debarment as punishment. "Too Big to Debar" also misrepresents the true consequences of debarment — the corporate death penalty. In an era of outsourced government, these large, sophisticated firms not only permit the government to provide critical functions, but employ thousands of hard-working and innocent employees. Imposing debarment for the sake of retribution or deterrence is not only contrary to law, but would be harmful to the country’s diverse interests.

If FCPA enforcement has touched every industry, why do the authors single out large government contractors? Because they can — large government contractors are not sympathetic. Even though nearly all companies, regardless of their size or line of business are exposed to the potential misconduct of rogue employees, the authors expect government contractors to defy the statistically impossible. Too Big to Debar appears to assert that it is morally wrong to “reward” government contractors that have misbehaved. By injecting theories of punishment into an administrative regime, the article elevates the simple, almost visceral desire for large-scale retribution over the more nuanced best interests of the government. “A House of Cards Falls” exposes “Too Big to Debar” for what it is: a populist sound bite used to vilify and bash contractors without regard for nuance or reality.

Please Read:  A House of Cards Falls: Why 'Too Big to Debar' is All Slogan and Little Substance
 

By Drury D. Stevenson, South Texas College of Law and Nicholas J. Wagoner, South Texas College of Law Alumni

Courtesy of the Social Science Research Network

The Foreign Corrupt Practices Act (FCPA) criminalizes bribery of foreign government officials; the frequency of enforcement actions and severity of fines levied against corporations under the FCPA have significantly increased in the last few years. There is an ongoing problem, however, with the sanctions for FCPA violations: enforcement authorities (DOJ and SEC) and contracting officials have limited themselves to fines, civil penalties, and occasional imprisonment of individual violators. Debarment from future federal government contracts, even temporarily, is an unused sanction for FCPA violations, even though Congress provided for this punishment by statute. Debarment offers a far more potent deterrent than fines and penalties, as multinational contractors that conduct business with the U.S. are much less likely to view the sanction as merely a cost of doing business. If ridding foreign markets of corruption truly is a top priority of the U.S., it seems both unfair and imprudent for federal agencies to continue awarding lucrative, multibillion-dollar contracts to firms recently prosecuted for fraudulently obtaining such contracts overseas.

Enforcement officials shy away from debarring entities that violate the FCPA due to the short-term inconvenience of an agency’s inability to transact business with its favorite contractor, its inability to demand favorable bids from contractors when the field of potential bidders has thinned, the resulting job loss, and the risk of overdeterring companies that might otherwise pursue lucrative opportunities in emerging markets. This is the "too big to debar" problem – the federal government is too dependent on a particular set of large, private-sector corporations for equipment and services. In addition to the virtual immunity from debarment enjoyed by these firms when they violate the FCPA, the fines imposed for engaging in foreign corrupt practices comprise a tiny fraction of the potential revenue generated by lucrative contracts with the U.S. and foreign states. When discounted by the low probability of detection, these sanctions are far too low to deter unlawful activity.

Debarment would deter potential wrongdoers and incapacitate actual offenders. The deterrent would induce more firms to comply with the law, which would allow the “too big to debar” problem to diminish over time. To help illuminate these concerns and lend support to the thesis, this Article will examine the third largest FCPA-related enforcement action to date: the BAE Systems case. On March 1, 2010, BAE Systems paid approximately $400 million in fines for its corrupt practices abroad. In the year that followed however, the federal government awarded BAE contracts in excess of $6 billion dollars. The U.S.’s refusal to debar BAE because of the potential “collateral consequences” provides a case study on the benefits and drawbacks of deterring foreign corruption through suspension and debarment. This Article concludes that the U.S. must begin to diversify its portfolio of federal contractors so that prosecutors may leverage the legitimate threat of suspension and debarment to more effectively deter foreign corruption.  (July 2012)

Please Read:  FCPA Sanctions: Too Big to Debar?

By Theodore T. Richard, U. S. Air Force

Courtesy of the Social Science Research Network

This article explains what forward-deployed lawyers need in order to properly review work orders under LOGCAP. It explains the LOGCAP project validation process and the role of the legal advisor in that process. The article emphasizes that LOGCAP contracts and task orders are not subject to special treatment under the law, but must be formed, funded, and executed in accordance with the laws and regulations governing government contracts generally. In doing so, the article discusses United States fiscal law concepts as applied to rapid acquisition authorities used in the LOGCAP process. Ultimately, through explaining this process to deployed lawyers, then the deployed commanders who receive their advice will be empowered to make better informed decisions without risks of Anti-deficiency Act violations.  (July 2012)

Please read:  Logistics Civil Augmentation Program (LOGCAP) Legal Reviews

By Steven L. Schooner, George Washington University Law School and Pamela Kovacs, George Washington University - Law School

Courtesy of the Social Science Research Network

In M. Maropakis Carpentry v. United States, the U.S. Court of Appeals for the Federal Circuit upset the commonly understood rules of practice and procedure for government contracts dispute litigation. In what the Supreme Court might view as a drive-by jurisdictional ruling, the court held that a contractor must file its own claim for time extensions before it can defend against a government claim for liquidated damages. Two Court of Federal Claims cases then confirmed fears that the decision would create a significant, disruptive, and disadvantageous change in procedural posture for a large number of contractors defending against government claims. If unchecked, Maropakis may reflect one of the most significant changes in government-contracts litigation posture since the flurry of jurisdictional litigation following the late-1970s enactment of the Contract Disputes Act.

Courts make mistakes, but such errors need not indefinitely lead to inefficient, ineffective, or unfair results. The Federal Circuit should revisit the substance of Maropakis, en banc, at the first opportunity. Until then, contractor counsel should seek en banc review in any related cases or, where appropriate, consider amicus briefing. The Justice Department’s attorneys should exercise their discretion and refrain from exploiting Maropakis. Contractor counsel should craft arguments that persuade individual COFC judges to avoid the harsh and inefficient application of Maropakis. Administrative judges on the agency boards of contract appeals should stay the course and, if necessary, distinguish Maropakis. And, if the Federal Circuit fails to remedy the situation, Congress should craft and enact a legislative solution.  (June 2012)

Please Read:  Affirmatively Inefficient Jurisprudence?: Confusing Contractors’ Rights to Raise Affirmative Defenses with Sovereign Immunity

By Collin D. Swan, George Washington University Law School

Courtesy of the Social Science Research Network

The last two decades have been marked by numerous political efforts to reduce the size of the federal workforce and declare the end of the “era of big government.” These efforts left the federal government strapped for personnel and resources and have forced many agencies to increasingly rely on service contractors in general, and personal services contractors in particular, to fulfill their mandates. According to the Federal Acquisition Regulations, a personal services contract is a contract that creates an employer-employee relationship between the contractor and the federal government. Despite a longstanding — and, arguably, outdated — regulatory prohibition on the use of personal services contracts, many agencies are increasingly employing personal services contractors in positions traditionally reserved for government employees. The result is an absurd situation in which government ethics laws apply differently to service contractors and federal employees who work alongside each other, perform similar discretionary tasks, and have the same potential to engage in corrupt practices.

This Note argues that the personal services prohibition represents an outdated and inefficient method of protecting the government’s interest and should be abolished. Given the government’s current reliance on service contractors, procurement officials should not be concerned with whether a contract creates an employment relationship with the government, but instead with whether contractor personnel are being properly managed and supervised. Congress should thus explicitly abolish the personal services prohibition and apply government ethics laws to personal services contractors. This would reduce the ability of personal services contractors, who often perform discretionary functions on the government’s behalf, to act in their own personal interest to the detriment of the government’s mission.  (June 2012)

Please read:  Dead Letter Prohibitions and Policy Failures: Applying Government Ethics Standards to Personal Services Contractors

By By Christopher R. Yukins, George Washington University Law School and Robert D. Anderson, World Trade Organization

Courtesy of the Social Science Research Network

West Government Contracts Year in Review Conference - Covering 2011

These papers, presented by Christopher Yukins and Robert Anderson at the West Government Contracts Year in Review Conference (covering 2011), attempt to identify the key trends and issues for 2011 in U.S. federal procurement. The papers, given as part of the "international" session at the conference, discuss key developments in the WTO Government Procurement Agreement and in the evolution of trade policy under that agreement. The papers discuss recent amendments to the WTO, and the pending accessions of a number of nations (including China and, potentially, India) to the agreement.  (June 2012)

Please read:  Opening Procurement Markets Internationally: An Update, and the Road Ahead

Emerging Policy and Practice Issues (2011)

By Steven L. Schooner, George Washington University Law School and David J. Berteau, Center for Strategic and International Studies, Defense - Industrial Initiatives Group

Courtesy of the Social Science Research Network

West Government Contracts Year in Review Conference - Covering 2010

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 policy guidance on information technology (IT) procurement, cloud computing, and cyber-security. In addition, among other things, it addresses the Defense Department’s initiatives to squeeze savings, efficiencies, and productivity out of the acquisition regime and how this may affect the defense industrial base.  (March 2012)

Please read:  Emerging Policy and Practice Issues (2011)

By Steven L. Schooner, George Washington University Law School and Collin D. Swan, George Washington University Law School

Courtesy of the Social Science Research Network

Once the nation commits to engage in heavy, sustained military action abroad, particularly including the deployment of ground forces, political support is scrupulously observed and dissected. One of the most graphic factors influencing that support is the number of military soldiers who have made the ultimate sacrifice on the nation’s behalf. In the modern era, most studies suggest that the public considers the potential and actual casualties in U.S. wars to be an important factor, and an inverse relationship exists between the number of military deaths and public support. Economists have dubbed this the "casualty sensitivity" effect.

This article asserts that this stark and monolithic metric requires re-examination in light of a little-known phenomenon: on the modern battlefield, contractor personnel are dying at rates similar to - and at times in excess of - soldiers. The increased risk to contractors’ health and well-being logically follows the expanded role of contractors in modern governance and defense. For the most part, this "substitution" has taken place outside of the cognizance of the public and, potentially, Congress. This article explains the phenomenon, identifies some of the challenges and complexities associated with quantifying and qualifying the real price of combat in a modern outsourced military, and encourages greater transparency so that the public can more meaningfully participate in "the great American experiment." 

Please Read:  Dead Contractors: The Un-Examined Effect of Surrogates on the Public’s Casualty Sensitivity

By Steven L. Schooner, George Washington University Law School

Courtesy of the Social Science Research Network

This Article discusses the Federal Circuit's 2010 government contracts cases. It begins with some perspective on, and empirical quantification of, the Federal Circuit’s level of specialization and evolving jurisprudence in the field of government contracts. It eventually turns to analysis of a hodge-podge of unrelated cases: three award controversies (or bid protests), a handful of post award performance disputes, a few selections from the ongoing behemoths of litigation in the U.S. Court of Federal Claims - Winstar and Spent Nuclear Fuel, and a potentially analogous implied warranty case. Overall, the article suggests that the Federal Circuit's 2010 government contracts cases appear to lack significant volume, thematic coherence, or dramatic impact. It also reinforces the perception that the court does not, and does not desire to, embrace the unique nature of the federal government contract regime as an analytical premise or predicate. Rather, the court increasingly appears to prefer a more consistent, streamlined, simplified, or even formalistic approach to its highly varied docket.

Please Read:  A Random Walk: The Federal Circuit’s 2010 Government Contracts Decisions

By Nicholas Sanders, Certified Government Financial Manager

PMO Partnership Joint Venture (PMO-JV) was a joint venture formed under the laws of the State of Florida for the purpose of submitting a proposal to the Department of Transportation's Federal Transit Administration (FTA) to provide program management oversight services. Although PMO-JV's technical proposal was "among the most 'highly rated' technical proposals" and although FTA awarded 18 contracts in response to proposals it received, PMO-JV's cost proposal was rejected by the FTA Contracting Officer and the joint venture was not selected for contract award.  PMO-JV protested to the Government Accountability Office (GAO), and its protest was sustained. In response to GAO recommendations, FTA had PMO-JV's proposal reevaluated and, once again, the FTA Contracting Officer rejected PMO-JV's cost proposal. Once again, PMO-JV protested the Contracting Officer's decision; once again, GAO sustained the protest.

Two bid protests and two protests sustained over a two-year period.  What went wrong here?  (April 2011)

Please Read:  The Sad, Yet Illustrative, Case Of PMO Partnership Joint Venture  (pdf)

By Steven L. Schooner, George Washington University Law School; and David J. Berteau, Center for Strategic and International Studies, Defense, Industrial Initiatives Group

Courtesy of the Social Science Research Network

West Government Contracts Year in Review Conference - Covering 2010

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 grant spending outpaced procurement spending by more than sixteen percent; expresses concern that agencies have their work cut out for them in their continuing efforts to fund additional acquisition billets and investing in training and professional development in an era of pay freezes and pressure to reduce government spending; discusses how the government has grown into its permanent and growing reliance on contracts for a wide range of professional and support services; expresses dismay that, for political purposes, the public is not exposed to an objective, even-handed assessment of the roles contractors play and the extent of their contribution to the government’s myriad missions; and highlights the Professional Services Council Acquisition Policy Survey, The Great Divide, which chronicled the marked difference in perceptions between operational acquisition professionals – the people who actually purchase the goods and services necessary for the government to perform its missions – and those whose role is primarily oversight (e.g., legislative staff, GAO, etc.) of the people and firms that do the work.

Please read Emerging Policy and Practice Issues (2010)

By Christopher R. Yukins

Courtesy of the Social Science Research Network

West Government Contracts Year in Review Conference - Covering 2010

This paper, presented at the West Government Contracts Year in Review Conference (covering 2010), discusses developing issues in international public procurement. Among other things, the paper suggests that, in 2010, the international procurement market continued to mature, as cross-border barriers to trade continue to fall. Large developing nations - including China and, potentially, India - moved to join the World Trade Organization (WTO) Government Procurement Agreement (GPA), the leading instrument for opening procurement markets. In the United States, while open issues remained regarding how to ensure that the United States meets its own free-trade obligations in procurement, the United States and Canada were able to reach a compromise on U.S. - Canadian procurement purchasing that may open the way for future agreement. That thaw in international procurement markets was in contrast, though, to a new U.S. tax on foreign contractors selling to the U.S. government who fall outside the protection of the GPA and other agreements. More broadly, there was a growing international trend in favor of unified defense-civilian procurement, bolstered by a recent European directive on defense procurement. Freer trade in defense procurement may, however, be affected by efforts to ensure security of supply (including efforts in Europe and the United States) - an area where comparison between the two systems may be useful, as the debate over protecting “critical materials” in the U.S. system is rapidly advancing.

Please read Barriers to International Trade in Procurement after the Economic Crisis, Part II: Opening International Procurement Markets: Unfinished Business

By Christopher R. Yukins

Courtesy of the Social Science Research Network

Over the past several decades, the federal procurement system in the United States has grown remarkably, and now totals over $500 billion annually.

Over that same period, the rules governing federal procurement have been buffeted by broad efforts at reform. At no point, however, have we ever had an overarching theory - a model or prism - through which to assess the procurement system or its reform. Agency theory provides one such theoretical model. Long established in economics and the other social sciences, the principal-agent model (agency theory) provides a model to explain successes (and failures) in organizational structures, and also to understand the procurement system and its rules. The theory builds upon the classic principal-agent model. A principal enlists an agent to carry out the principal’s goals, presumably because the agent enjoys some comparative advantage in performing the goals. Inevitably, however, the agent’s interests diverge from the principal’s; if the agent’s goals diverge sufficiently, the agent may be said to have a conflict of interest. This article employs agency theory to assess classic constructs of procurement law, such as Steven Schooner's desiderata, and argues that the theory can be used to solve future puzzles in procurement policy, and to predict where procurement policies are likely to fail - and to succeed.

Please read A Versatile Prism: Assessing Procurement Law Through the Principal-Agent Model.

By:  Steven L. Schooner and Collin D. Swan

Courtesy of the Social Science Research Network

As the 'blended workforce' - a realm in which contractors work alongside, and often are indistinguishable from, their Government counterparts - becomes more commonplace, the distinction between civil servants, members of the military and contractor employees increasingly blurs. One intriguing (and, apparently, accelerating), yet little-known trend is that contractor employees are more frequently suing the Government, alleging employment discrimination on the part of Government managers, supervisors or even coworkers. This short piece discusses the evolving 'joint employer' liability doctrine. It suggests that The federal courts' and the EEOC's willingness to define federal agencies as de facto employers of contractor employees is further evidence that the prohibition on personal service contracts is - or should now be deemed - a dead letter. Ultimately, it concludes that both the Government and its contractors need to understand that, as federal agencies continue to rely on contractors for their staffing needs, the ability to distinguish between civil servants and contractors - in the eyes of the law - will become increasingly more difficult.

Please Read:  Suing the Government as a 'Joint Employer' - Evolving Pathologies of the Blended Workforce.

By:  Bruce Hinchey, an attorney completing an LL.M. degree in Government Procurement Law at The George Washington University Law School. He is currently looking for employment in Foreign Corrupt Practices Act defense and government contracts practices.

Courtesy of the Social Science Research Network

The Department of Justice has long promised tangible benefits to companies that voluntarily disclose (FCPA) violations. Justice Department officials have promised that the enforcement of the FCPA is both fair and consistent. Despite these promises, critics question the benefits of voluntary disclosure based on the outcome of a few, isolated cases. In this thesis, forty FCPA cases from 2002 through 2009 are compiled, comparing the ratio between bribes and fines for companies that do and do not voluntarily disclose. The results side with the critics and reveal that there does not appear to be a benefit to voluntary disclosure. The data from these cases is then used to identify how the FCPA can be honed to encourage compliance and deter violations in a fairer and more efficient manner. Next, comparisons are made between the FCPA and other anti-corruption organizations and entities, with the intent of incorporating refinements to the voluntary disclosure enforcement process. These comparisons consider not only the legal framework for preventing bribery but also how those laws are enforced. Finally, recent FCPA developments are considered along with some suggested actions to bring more fairness and efficiency to voluntary disclosures under the FCPA.

Please Read:  Punishing the Penitent: Disproportionate Fines in Recent FCPA Enforcements and Suggested Improvements.

By:  Timothy R. Wyatt,  Ph.D., College of Engineering, Georgia Institute of Technology; J.D. candidate, Wake Forest University School of Law

Courtesy of the Social Science Research Network

Winner of the U. S. Court of Federal Claims Bar Association's 2009 Writing Competition.

Federal patent legislation provides for the immunization of contractors for the U. S. Department of Defense ("DoD") who infringe patents, with DoD's authorization and consent, in the performance of government contracts. Where the government has authorized or consented to the patent infringement, the patent owner's exclusive remedy, barring a settlement with DoD, is a royalty award in the U.S. Court of Federal Claims. In recent years, however, other federal courts (primarily the U.S. Court of Appeals for the Federal Circuit) have limited the remedy available to patent owners. Both the government and the infringing contractors have escaped paying royalties by finding technical loopholes in the patent legislation: By delegating infringing activities to subcontractors, by the government not directly accepting infringing products from the prime contractors, or by having the infringing activities conducted outside of the United States. In addition, courts have determined that the "reasonable royalty" available to patent owners in these situations need not fully compensate the patent owner for losing the government contract to its competitor.

In 2009, however, the pendulum appeared to shift strongly in favor of patent owners with two rulings from the Court of Federal Claims. In Zoltek Corporation v. United States, the Court rejected the government’s use of technical loopholes to avoid paying royalties to the patent owner. And in The Boeing Company v. United States, the Court required the government to fully compensate the patent owner for infringing activities that the government had authorized. These encouraging trends indicate that patent owners can expect to be fully compensated for innovations that benefit DoD, and bad faith actions by infringers may no longer be protected simply because they occur under government contract.

This work was awarded first place in the inaugural Court of Federal Claims Bar Association writing competition.

Please Read:  In Search of Reasonable Compensation: Patent Infringement by Defense Contractors with the Authorization and Consent of the U.S. Government.

By:  Steven L. Schooner and David J. Berteau

Courtesy of the Social Science Research Network

West Government Contracts Year in Review Conference - Covering 2009

Please read:  Emerging Policy and Practice Issues (2009)

By:  Steven L. Schooner

Courtesy of the Social Science Research Network

Courtesy of the The IBM Center for the Business of Government

This brief paper discusses the Obama administration's public procurement agenda, major trends that influence the acquisition regime (that now encompasses $500B annually), and significant challenges the administration faces in improving the value it receives for the money it spends. It concludes with a group of research questions suggested by participants at the November IBM forum on Framing a Public Management Research Agenda.

Please read:  Federal Contracting and Acquisition: Progress, Challenges, and the Road Ahead

By C. Peter Dungan

Courtesy of the Social Science Research Network

This paper examines the current DFARS software intellectual property (IP) rights scheme and provides a roadmap for further reform. Part II analyzes the history of software development and the historical regulations governing DoD's procurement of software. Part III examines the current DFARS provisions governing rights in software. Even after two congressionally mandated rewrites, the DFARS retains the protectionist character of Cold War era IP regulations. Part IV examines the viewpoints of the stakeholders in government-procured software. Contractors view intellectual property as the "crown jewel" of corporate assets. Moreover, DoD often does not need the extensive rights that these regulations confer. Finally, Part V suggests a way to encourage non-traditional firms to enter the government marketplace. The current standard licenses for software are are too broad and grant the Government rights that it does not need. Reformed DFARS clauses should confer rights through negotiation and establish, as the maximum the Government can demand, a level of rights equal to the current government purpose rights license. Such a reform would alleviate the fears many companies have that the Government will pawn off their "crown jewels."  (October 2009)

Please read:  Less is More: Encouraging Greater Competition in Computer Software Procurement by Simplifying the DFARS Licensing Scheme.

By Steven L. Schooner and Christopher R. Yukins

Courtesy of the Social Science Research Network

Published in West's The Government Contractor newsletter

The controversial 'Buy American requirements in Section 1605 of the American Recovery and Reinvestment Act of 2009 threaten to stir protectionism leading to an outright trade war. This could be catastrophic in the current economic crisis, particularly since the Obama administration does not appear to believe that additional domestic preferences are needed for U.S. procurement. The pending challenge for federal regulators, therefore, will be to craft a rule that contains the Recovery Act's international impact, while implementing Congress' intent. The authors suggest that the optimal approach seems to be the most simple: to fold new procurement under the Recovery Act into the existing FAR regulatory structure, which accommodates the U.S.' many trade agreements. This would ensure that federal agencies' procurements adhere to those trade agreements (and also increases the likelihood that an already over-taxed acquisition workforce can consistently apply the new rules.) This simple, quick and elegant approach would be the least likely to generate new, potentially disastrous waves of protectionism in the critical, but treacherous, waters of global commerce.

Please read:  Tempering 'Buy American' in the Recovery Act - Steering Clear of a Trade War.

By Steven L. Schooner and Christopher R. Yukins

Courtesy of the Social Science Research Network and VOX.

The authors assert that, in the face of severe economic challenges, efficient and effective public purchasing is critical. Governments should focus on obtaining the greatest possible value for money expended and minimizing corruption, while eschewing counter-productive and inefficient protectionist constraints on procurement regimes. Stimulus investments in strengthening the acquisition workforce - the officials responsible for spending the government's money honestly and consistent with sound, business-based, transparent practices - will pay both short- and long-term dividends.  (March 2009)

Please read:  Public Procurement: Focus on People, Value for Money and Systemic Integrity, Not Protectionism.

By Trevor L Brown, Associate Professor, The Ohio State University; Matthew Potoski, Associate Professor, Iowa State University; and David M Van Slyke, Associate Professor, Syracuse University.

Courtesy of the The IBM Center for the Business of Government

Contracts for complex products are risky for both buyers and sellers. With few competing vendors, the buyer—in this case a government agency—bears the risk that the seller will deliver a product that does not meet its needs or will request payment that exceeds the expected value of the product. And faced with a buyer who wants a very specialized product that few, if any, other buyers want, the seller bears the risk that it will invest time and effort to build a product for which it will not receive adequate compensation. These are difficult deals to negotiate.

This report highlights the risk of becoming locked in to or stuck in a contract with a vendor for a complex product or its components by examining the U.S. Coast Guard’s Deepwater program, a major system-of-systems (SoS) acquisition to upgrade and integrate its sea and air assets (such as boats and airplanes). The Coast Guard is six years into a projected 25-year acquisition and production process for the Deepwater program, far enough along to examine options and tradeoffs at two initial stages: choosing whether to build, buy, or assemble the product, and designing the acquisition contract.

The Coast Guard’s experience with Project Deepwater suggests ways that government agencies can harness the benefits of complex contracting while avoiding its pitfalls. The Coast Guard experimented with a novel contracting approach and learned several lessons for future acquisitions of complex products:

• The effective acquisition of complex products requires an expanded and more highly skilled acquisition workforce.

• The effective acquisition of complex products requires a better understanding of risk.

• The effective acquisition of complex products requires an investment in learning. 

(January 2009)

Please read:  The Challenge of Contracting for Large Complex Projects: A Case Study of the Coast Guard’s Deepwater Program.

By Steven L. Schooner

Courtesy of the Social Science Research Network

At the end of July 2008, the media reported that 4,600 service members have died in Operations Iraqi Freedom and Enduring Freedom. But reporting only military fatalities understates the human cost of America's engagements in these regions by nearly a fourth. On the modern, outsourced battlefield, the U.S. government increasingly has delegated to the private sector the responsibility to stand in harm's way and, if required, die for America. As of 30 June 2008, more than 1,350 civilian contractor personnel had died in Iraq and Afghanistan, while another 29,000 contractors have been injured; more than 8,300 seriously. Nonetheless, contractor fatalities (and injuries) remain generally outside the public's consciousness. This article asserts that, in a representative democracy, public awareness of the human cost of our nation's security and foreign policies is critical.  (December 2008)

Please read:  Why Contractor Fatalities Matter

Too Dependent on Contractors? Minimum Standards for Responsible Governance

By Steven L. Schooner and Daniel S. Greenspahn

Courtesy of the Social Science Research Network

While acknowledging that there are many benefits, challenges, and risks involved in outsourcing, this article asserts that failed implementation, rather than outsourcing policy, explains the government's current (mis)management of its contractors. This article explores the minimum standards for responsible governance following more than 15 years of ill-conceived and inadequate investment in the federal government's acquisition workforce, followed by a governmentwide failure to respond to a dramatic increase in procurement activity. These trends have led to a buying and contract management regime animated by triage, with insufficient resources available for contract administration, management, and oversight. The old adage "an ounce of prevention is worth a pound of cure" rings true. Accordingly, a prospective investment in upgrading the number, skills, incentives, and morale of government purchasing officials would reap huge long-term dividends for the taxpayers.  (September 2008)

Please read Too Dependent on Contractors? Minimum Standards for Responsible Governance.

By Robert Antonio

10th Anniversary Special

One of the inside jokes we had as auditors for the Government Accountability Office (GAO) was the phrase:  "We're Here To Help."  Sometimes, the victim agency would spring that phrase on us when we first met with agency officials to announce our audit.  Maybe it wasn't so inside after all.  If you are involved during the issuance of solicitations or if you are involved during the source selection process, you may believe that GAO's Procurement Law attorneys are less helpful than the auditors.  If you do, you are wrong.  First, the Procurement Law attorneys know something about their subject area.  Second, in many of their decisions, they provide instruction in their rules of contracting.  Quite often they repeat the same rule over and over again in similar decisions.  Often they add to the rule.  That is what this article is about--helping you identify those rules.  (July 2008)

Please read They're Here To Help

By Steven L. Schooner, Daniel I. Gordon, and Jessica L. Clark

Courtesy of the Social Science Research Network

Around the world, governments are increasingly becoming focused on improving their public procurement regimes. Significant developments include the establishment of internationally shared norms for public procurement systems, while, at the national level, a number of countries have adopted dramatically new public procurement regimes, and others are experimenting with new procurement vehicles, such as framework agreements and electronic reverse auctions, and new procurement schemes, including public-private partnerships. As each of these changes is contemplated, planned, implemented, and then assessed, government leaders and policy makers need a framework of analysis for decision making - a framework based on public procurement goals and understanding stakeholder interests.

In this condensed working paper (being delivered at the Naval Postgraduate School Acquisition Symposium), we offer such a framework, building on the ideas in Steve Schooner's 2002 article, 'Desiderata: Objectives for a System of Government Contract Law.' In that article, Schooner outlined nine objectives, or desiderata, of public procurement systems: competition, integrity, transparency, efficiency, customer satisfaction, best value, wealth distribution, risk avoidance, and uniformity. From that starting point, we use stakeholder analysis to further develop the desiderata into a two-part framework to give policy makers and government leaders a tool for public procurement decision making. Just as 'Desiderata' has contributed to public procurement decision making, this analytical framework can help clarify, and perhaps inform, many of the debates raging around procurement reform.  (May 2008)

From one of the authors:

This project is very much a work in progress, and we posted the draft at this point because we are actively seeking comments, reactions, suggestions, examples, and anecdotes. (Again, the version posted on SSRN is a significantly condensed version.)

Readers should not hesitate to correspond directly with Steven L. Schooner or, of course, with the other authors.

Please read:  Public Procurement Systems: Unpacking Stakeholder Aspirations and Expectations.

By Eitan Goldman, JÖRG ROCHOLL, and JONGIL SO

Courtesy of the Social Science Research Network

This paper analyzes whether political connections of public corporations in the United States affect the allocation of government procurement contracts. The paper classifies the political affiliation of S&P 500 companies using hand-collected data that detail the past political position of each of their board members. Using this classification, the study focuses on the change in control of both House and Senate following the 1994 midterm election and on the change in the Presidency following the 2000 election. An analysis of the change in the value of the procurement contracts awarded to these companies before and after 1994 and 2000, respectively, indicates that companies that are connected to the winning (losing) party are significantly more likely to experience an increase (decrease) in procurement contracts. The results remain significant after controlling for industry classifications as well as for several firm characteristics. In total, these findings suggest that the allocation of procurement contracts is influenced, at least in part, by political connections. Thus, our study provides one of the first pieces of evidence showing a direct avenue through which political connections add value to U.S. companies.  (April 2008)

Please read:  Political Connections and the Allocation of Procurement Contracts.

A Legal Analysis of the Statutory and Contractual Allocation of Data Rights in Federal Contracts Subject to 10 U.S.C. 2320

By Dayn T. Beam

As the author delved deeper and deeper into the structure and substance of 10 U.S.C. 2320 and the implementing regulations and contract clauses, it was a very pleasant surprise to find that the structure and substance of that statute could produce practical and fair outcomes when applied and followed as written. While there is one enormously useful and complete treatise on this subject and a few law review articles with very good summaries of the issues, most articles and case law focus on isolated issues without placing those issues into a clear and complete context with the Statute, the DFARS, and other issues. As with any attempt to ascertain the fullest extent of the authorizations and the limitations contained within a statute (and subsequent implementing regulations), the initial analysis will not consider prior assumptions, past practices, case law, and even scholarly analyses which might influence the initial interpretation of the plain meaning of the words as written. These other sources and authorities will be considered, as discussed in Part V, only after completing the initial analysis.

This analysis is divided into the basic paper and five Attachments. The basic paper analyzes the Statute and the DFARS as they are written. Attachments One and Two provide a copy of 10 U.S.C. 2320 and DFARS 252.227-7013 for convenient reference. Attachments Three, Four, and Five, examine the practical application issues which arise in an attorney’s daily practice regarding DOD Data Rights.  (April 2008)

About The Author

Dayn Thomas Beam has been an attorney advisor with the Aviation and Missile Command (AMCOM) (formerly MICOM) Legal Office for the past twenty-nine years. He presently is serving in the Intellectual Property Law Group and previously has served in the Acquisition Law Division and General Law Division of this office. He has published numerous manuals and papers on topics of concern in these areas of law, including "A Practical Guide for the Understanding, Acquiring, Using, Transferring, and Disposition of Intellectual Property by DoD Personnel." He has conducted training in many command-wide training programs and has received many awards in each area of law in which he has practiced, including the AMC Individual Award for Outstanding Achievement in Value Engineering. 
 

Please read:  A Legal Analysis of the Statutory and Contractual Allocation of Data Rights in Federal Contracts Subject to 10 U.S.C. 2320.  Updated May 21, 2009.  (MS Word)  (388 KB)

By Steven L. Schooner and Danielle Conway-Jones

Courtesy of the Social Science Research Network

West Government Contracts Year in Review Conference - Covering 2007

This paper, presented at the West Government Contracts Year in Review Conference (covering 2007), attempts to identify the key trends and issues for 2008 in U.S. federal procurement. The authors bemoan the absence of attention to significant issues by the current Presidential candidates, critique the leadership vacuum that sustains the longstanding and increasingly critical acquisition workforce shortage, and discuss the potentially active legislative agenda in light of the now-Final Report of the Acquisition Advisory Panel (AAP), a blue-ribbon commission mandated by Section 1423 of the Services Acquisition Reform Act (SARA). The authors also discuss the dramatic post-2000 trend in increased federal procurement spending, increased transparency due to the Federal Procurement Data System and new online vehicles, increased attention to contractor compliance systems, continuing problems with contracting in Iraq, and the application of certain social policies to the procurement process. (March 2008)

Please read: Emerging Policy and Practice Issues.

By Nick Sanders, Director, Aerospace & Defense Advisory Services, PriceWaterhouseCoopers.

West Government Contracts Year in Review Conference

It is tempting to say that the pressures on the Federal Government, its contractors, and their management teams to deliver high-quality goods and services on time and on budget have never been greater. Government Accountability Office and independent panel reports, as well as the words of Congressional reformers, provide ample evidence that little tolerance exists for failure to achieve contractual "acquisition outcomes." Despite the current environment, newspaper headlines continue to report problematic quality, cost and schedule performance by the Department of Defense and its contractors. Does the current high-sensitivity/low-tolerance Government contracting environment represent a radical paradigm-shift, a pendulum-swing back to the pre-Federal Acquisition Streamlining Act days of MILSPEC and oversight – or is it "the same old song and dance" repackaged for a new audience? (April 2007)

Please read: Renewed Focus on Program Performance Management Or The Government-Imposed Shotgun Marriage Between the Accountant and Engineer

By Steven L. Schooner and Christopher R. Yukins

Courtesy of the Social Science Research Network

West Government Contracts Year in Review Conference (Covering 2006)

This paper, presented at the West Government Contracts Year in Review Conference (covering 2006), attempts to identify the key trends and issues for 2007 in U.S. federal procurement. In large part, the paper discusses the "Draft Final" Report of the Acquisition Advisory Panel (AAP), a blue-ribbon commission mandated by Section 1423 of the Services Acquisition Reform Act (SARA). Proceeding from the simple premise that the private sector does a better job with procurement by planning carefully and employing aggressive competition, the authors discuss, among other things, the inaccuracies that plague the Federal Procurement Data System; the dramatic post-2000 trend in increased procurement spending; the AAP's tame recommendations for commercial purchasing; and efforts to reign in (and responsibly utilize) interagency contracting. The authors also question the administration's relentless focus on competitive sourcing and critique the leadership vacuum that led to the longstanding and increasingly critical acquisition workforce shortage. (March 2007)    

Please read: Emerging Policy and Practice Issues (2006)

By Vernon J. Edwards

Special to WIFCON.com

On more than one occasion, members of the WIFCON.com discussion forum have asked the same question.  They want a recommendation for books that a government contracting professional should read.  Well, wait no longer.  (March 2007)    

Please read: Recommended Books for Government Contracting Professionals. (pdf)

By Vernon J. Edwards

Special to WIFCON.com

What's the problem with federal contracting?  Is it to much congressional oversight?  Could it be too much inspector general oversight?  How about too many people accepting inspector general reports at face value?  Is it too much work and even too much form filling?  What about too many rules?  The title of this article provides you with a taste of the author's view.  (March 2007)

Please read: Poor Leadership, Not Excessive Oversight, Is What Troubles Contracting

By Christopher R. Yukins

Courtesy of the Social Science Research Network

Published in West's The Government Contractor newsletter

The defense authorization act for fiscal year 2007, the John Warner National Defense Authorization Act for Fiscal Year 2007, H.R. 5122, has been signed into law. This essay reviews some of the key provisions in the act regarding procurement reform, including: (1) a renewed focus on lead systems integrators; (2) new technical data obligations for commercial contractors; (3) waiver procedures for specialty metals under the Berry Amendment; and (4) new integrity initiatives, including a GAO study of revolving door hires at major contractors. The essay notes that the act's many reform measures are likely stepping-stones to broader reforms. With recent scandals and the coming 2006 and 2008 elections, the pace of reform is, if anything, likely to accelerate.

Please read Procurement Reform in the Defense Authorization Act for Fiscal Year 2007 — A Creature of Compromise, Pointing the Way to Future Debates

By George B. Tereschuk

Federal Government acquisition of non-commercial supplies may include delivery of technical data and computer software with well-known licensing terms such as Unlimited Rights, Limited Rights or Restricted Rights. In Defense Department acquisitions, the resulting contract can permit delivery of technical data and computer software using a "middle way," known as Government Purpose Rights (GPR), which is an Intellectual Property licensing system that is available to DOD acquisitions. This paper describes the salient features of GPR such as the scope of the GPR license, differences between GPR, Unlimited Rights, and Limited Rights, the circumstances when GPR is granted and other characteristics of the GPR license. The author is a Patent Attorney in the Legal Office of the Headquarters, United States Army Communications/Electronics Life Cycle Management Command (CE/LCMC). (May 2006)

Please read Government Purpose Rights in Technical Data and Computer Software in DOD Acquisition.

By R. Preston McAfee

Courtesy of the Social Science Research Network

Government procurements that specify brand names can unnecessarily increase the price of purchases. In 2004, approximately 69 percent of the applicable solicitations for computer systems and technology contained language that either required specific name brand microprocessors, usually Intel, or specified that the processor should be equivalent to a particular brand microprocessor. Such exclusionary language could cost hundreds of millions of dollars unnecessarily. For some products, the variety and complexity of items compel contracting agents to use brand names rather than to detail specific technical requirements and product characteristics. In the case of microprocessors, third-party benchmarks represent a solution to such a procurement specification issue. (May 2006)

Please read Improving Federal Procurement: The Benefits of Vendor-Neutral Contract Specifications

By Erin Siuda and Steven L. Schooner

Courtesy of the Social Science Research Network

In the wake of Hurricane Katrina, Congress is considering S. 1761, The Gulf Coast Recovery Act (GCRA).  Congress intends for GCRA to provide insulation against liability for contractors involved in disaster relief and reconstruction.  It would broadly apply the government contractor defense and thereby forestall private tort litigation arising from contractors’ work in the wake of Hurricane Katrina and other similar disasters.  This Article asserts that GCRA grossly misses the mark when judged against two commonly suggested normative goals of tort law: the GCRA neither serves the ends of justice and fairness by compensating victims, nor does it minimize the costs of harm by deterring contractors from acting negligently. (May 2006)

Please read Post-Katrina Reconstruction Liability: Exposing the Inferior Risk-Bearer

Courtesy of the Procurement Round Table

Section 1423 of the Services Acquisition Reform Act of 200 authorized an Acquisition Advisory panel to review and recommend any necessary changes to acquisition laws and regulations as well as government-wide acquisition policies with a view toward ensuring effective and appropriate use of commercial practices and performance-based contracting.

On March 13, 2006, the Procurement Round Table (PRT) submitted a paper to the Panel entitled "A Proposal for a New Approach to Performance-Based Services Acquisition."  In this paper, the PRT concluded that the system for conducting performance-based service acquisition (PBSA) is not working — particularly with respect to long-term, complex service requirements. After a discussion of current PBSA problems, the paper recommends a new approach called Relational Contracting which emphasizes the need to establish solid working relationships between the Government and its complex service support contractors. The paper concludes with a recommendation that the Office of Federal Procurement Policy (OFPP) obtain statutory authority for pilot program application of the Relational Contracting concept. (April 2006)

Please read A Proposal for a New Approach to Performance-Based Services Acquisition

By William E. Kovacic and Steven L. Schooner

Courtesy of the Social Science Research Network

Neither Congress, the procuring agencies, the media, nor the public will condone government contractors reaping what are perceived as excessive profits. Accordingly, the procurement process employs an unduly complex, burdensome, risk-laden, and ineffective mechanism that erects significant barriers to civil/military integration. This paper examines certain policy implications associated with the Truth In Negotiations Act, the existing audit regime, and the use of criminal and civil anti-fraud measures to scrutinize deviations from these complex cost, pricing, and profit policies and controls. It revisits the long-extinct Renegotiation Act and finds it less troubling than the existing quagmire. This paper proposes to simplify and decriminalize federal procurement pricing and profit policy by drawing from the historical renegotiation experience. (April 2006)

Please read A Modest Proposal to Enhance Civil/Military Integration: Rethinking the Renegotiation Regime as a Regulatory Mechanism to Decriminalize Cost, Pricing, and Profit Policy

Constructing a Bid Protest Process: Choices Every Procurement Challenge System Must Make

By Daniel L. Gordon

Courtesy of the Social Science Research Network

Many public procurement systems 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 article discusses the goals of bid protest systems and presents key choices that must be made in crafting a system. The article does not describe an ideal bid protest system, but rather presents the decisions that need to be made when constructing a bid protest system. (April 2006)

Please read Constructing a Bid Protest Process: Choices Every Procurement Challenge System Must Make

By Steven L. Schooner and Christopher R. Yukins

Courtesy of the Social Science Research Network

Accepted Paper of West Government Contracts Year in Review Conference (Covering 2005)

This paper attempts to identify the key trends and issues for 2006 in U.S. federal procurement. It 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 crisis; centralized purchasing; public service ethics in the post-Darleen Druyun era; interagency purchasing and fees; post-Hurricane Katrina procurement; electronic procurement and reverse auctions; and conflicts of interest. (February 2006)

Please read Emerging Policy and Practice Issues (2005)

By Ralph C. Nash, Joseph A Vergilio, Gilbert J. Ginsburg, Mary Anne Q. Wood, John S. Pachter, Douglas L. Patin, James F. Nagle, Clarence T. Kipps, Jr., Steven L. Schooner

Courtesy of the Social Science Research Network

Public Contract Law Journal

In 1987, I received my Masters degree in Government Procurement from The American University in Washington, D. C.  Of course, my textbooks were written by Ralph C. Nash and John Cibinic, Jr.  As I write, my hard copies of Federal Procurement Law and several other Nash & Cibinic texts sit in my office library a few feet away.  On August 1, 2005, John Cibinic, Jr. died.  Several of his colleagues have written brief memories of their experiences with him in this memoriam. 

What effect did John Cibinic, Jr. have on me?  If he had not lived, I would not have earned my Masters degree and I would be a different person.  If John Cibinic, Jr. had not lived, there would not be a Where in Federal Contracting?; there would not be a wifcon.com; there would not be a Wifcon Forum; and you would not be reading this now.

Please Read In Memoriam, John Cibinic, Jr.

By Christopher R. Yukins and Joshua I. Schwartz

Courtesy of the Social Science Research Network

Published in West's The Government Contractor newsletter

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, the authors 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 support such radical measures. Professor Schwartz argues that there is no basis, empirically or analytically, for any effort to undo the careful protections afforded by the federal procurement system. (October 2005)

Please Read Katrina's Continuing Impact on Procurement - Emergency Procurement Powers in H.R. 3766.

By Christopher R. Yukins

Courtesy of the Social Science Research Network

Published in West's The Government Contractor newsletter

This paper proffers a conceptual model for procurement reform in the United States today and argues that much of the current reform can be understood as an attempt to bring order to the devolution of the contracting function, from users, to agency contracting officials, to centralized purchasing agencies, and now, finally, to private contractors. The paper also argues that this devolution is, in fact, an outsourcing of the contracting function, and that therefore classic models of private-sector outsourcing should be applicable. The government should, in other words, be asking whether the contracting function should be outsourced, and if so, whether that function is being properly devolved, with appropriate checks and limits. This model, which assesses U.S. procurement reform against the rush to devolve the contracting function, applies equally well to the procurement reform legislation pending before Congress. The various procurement reform measures in the pending defense authorization bills reflect Congress' effort to curb——or at least control——the devolution of the contracting function, because of rising concern that too much authority has devolved too far. (June 2005)

Please Read Understanding the Current Wave of Procurement Reform:  Devolution of the Contracting Function.

By Steven L. Schooner and Christopher R. Yukins

Courtesy of the Social Science Research Network

Published in West's The Government Contractor newsletter

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 latter is important, the letter dodged the primary issue that daunts the workforce, painted a deceptive picture of a growing acquisition workforce and failed to communicate a vision for a reinvigorated corps of contracting professionals. The second, A Pedagogical Perspective on Training the Acquisition Workforce, offers some pedagogical reactions to the policy letter and some suggestions, with a focus on the need for teaching critical thinking. (May 2005)

Please Read Commentary on the Acquisition Workforce

By Jacques S. Gansler and William Lucyshyn

Courtesy of the The IBM Center for the Business of Government

In this article, four case studies highlight how organizations have implemented outsourcing, competitive sourcing, and public-private partnerships to achieve savings and better performance. First is the National Aeronautics and Space Administration's initiative to outsource its computer desktop maintenance to the private sector. The second illustrates the use of competitive sourcing by the Internal Revenue Service as part of its effort to modernize. The third, Offutt Air Force Base's decision to compete more than 1,500 positions, is an example of the military’s efforts to shift more active duty personnel from support to combat-oriented positions. The fourth, a form of public-private partnership for maintenance of C-130 aircraft propeller assemblies at Robins Air Force Base, demonstrates the Air Force's commitment to reducing costs to make funds available for military modernization. (April 2005)

Please Read Implementing Alternative Sourcing Strategies: Four Case Studies

By Richard Engelbrecht-Wiggans and Elena Katok

Courtesy of the Social Science Research Network

E-Sourcing refers to the use of internet-enabled applications and decision support tools that facilitate competitive and collaborative interactions among buyers and suppliers through the use of online negotiations, reverse (decreasing bid) auctions, and other related tools. The use of auctions in e-Sourcing may save buyers considerable amounts of money. For example, the U.S. General Services Administration attributed savings of 12% to 48% to the use of auctions. However, auctions may not be delivering quite as much savings as hoped and some argue that they inflict damage on the long-term buyer-supplier relationships by inhibiting collaboration.  In this article, the authors develop a mechanism that blends features of reverse auctions and long-term relationships.  (April 2005)

Please Read e-Sourcing in Procurement: Theory and Behavior in Reverse Auctions with Non-Competitive Contracts.

By Steven L. Schooner

Courtesy of the Social Science Research Network

Published in West's The Government Contractor newsletter

This brief piece 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.  (April 2005)

Please Read Risky Business: Managing Interagency Acquisition.

By Daniel L. Gordon

Courtesy of the Social Science Research Network

Conflicts of interest involving government officials have been very much in the news in recent years. At least in the United States, public procurement professionals are encountering more and more instances of a more particular kind of conflict, organizational conflicts of interest (OCIs), which can be defined, initially, as 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.  (February 2005)

Please Read Organizational Conflicts of Interest:  A Growing Integrity Challenge

By Steven L. Schooner and Christopher R. Yukins

Courtesy of the Social Science Research Network

That was the year that was.  In this item, the authors share a paper that they presented at the West Government Contracts Year in Review Conference.  The article covers a variety of issues including certain federal contracting scandals, task order contracting, and share-in-savings contracting.  (February 2005)

Please Read Emerging Policy and Practice Issues.

By David C. Wyld

Courtesy of the The IBM Center for the Business of Government

One thing an auction bidder does not want to see at an auction is a fellow collector who shares the same collecting interests as the bidder.  Worse yet is more than one of these fellow collectors to run the bid on an item to unexpected heights.  On the other hand, the seller knows that the more interested bidders there are, the merrier the bidding process will be for the seller.  Now, if you are selling excess corporate or government assets, how can you get a large number of interested buyers.  If you want to know, read this article.  The article is well written in straightforward language and filled with examples, tidbits of interesting information, and many graphics and tables enhancing the presentation.  Various auction methods are discussed and explained.  If you are not interested in this topic, you will enjoy reading the article.  If you are interested in this topic, you will be delighted.  This simply is one of the best written, best presented articles you will read.  (January 2005)

Please read Government Garage Sales: Online Auctions as Tools for Asset Management.

Competitive Sourcing:  What Happens to Federal Employees?

By Jacques S. Gansler and William Lucyshyn

Courtesy of the The IBM Center for the Business of Government

What happens to federal employees when a competition—competitive sourcing—is held between the government and the private sector?  According to the authors of this study, the effect of such a competition on the federal employees involved has received a limited analysis.  To understand what happens, the authors analyzed all A-76 competitions conducted by the Department of Defense from 1994 through the first quarter of 2004.  In this report, they present their findings, conclusions, and recommendations.  (January 2005)

Please read Competitive Sourcing: What Happens to Federal Employees?

By Joshua I. Schwartz

Courtesy of the Social Science Research Network

In this article the author looks at selected differences between government contract law and private contract law.  The author defines the term "exceptionalism" as contract law where the United States Government is not subject to all of the legal obligations and liabilities of private parties under private agreements.  On the other hand, the author defines the term "congruence" as contract law where United States Government is subject to the legal obligations and liabilities used by private parties under private agreements.  Using these two basic terms, the author identifies areas of contract formation and contract performance that fits under each term.  Finally, the author explains that military procurement forms the basis for exceptionalism in federal contract law. (October 2004)

Please Read The Centrality of Military Procurement: Explaining the Exceptionalist Character of United States Federal Public Procurement Law

By Steven L. Schooner

Courtesy of the Social Science Research Network

If you have reviewed wifcon.com's analysis of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, you will have noticed several sections dealing with the Department of Defense's use of other agencies' contracts and the Department's use of contractor employees in Iraq.  You also may have noticed the specificity of the legislative language and the extended remarks of the Senate and House conferees in their conference report.  This article discusses some of the reasons for that legislation and those remarks.  Since the 1990s, policymakers have reduced the contracting workforce, increased efforts to outsource, and focused on streamlining the contracting process.  The author explains that the government ended up with untrained contractor personnel, untrained government contracting personnel, a mixed workforce of contractor and government personnel, invisible contract actions, and finally Abu Ghraib. (October 2004)  (October 2004)

Please Read Contractor Atrocities at Abu Ghraib: Compromised Accountability in a Streamlined, Outsourced Government

By Christopher R. Yukins

Section 508 of the Rehabilitation Act requires that all information technology bought by the federal government be accessible to persons with disabilities. That goal, simple to state, has been enormously complex to implement. In imposing a social initiative on the procurement system, Congress has left a huge number of issues unresolved — including, most critically, who is to pay for the initiative. This article reviews the issues raised by Section 508, and traces common patterns that emerge when, as with Section 508, social goals are implemented through a large, complex, and deeply entrenched procurement system. The article traces the impact of established constituencies, inside and outside the government, both in slowing Section 508’s progress and in filling gaps left by Congress and the regulators. The article suggests that, as the U.S. procurement system grows ever more streamlined in the coming years, the patterns and pitfalls of Section 508 — and of other social initiatives — will become an increasingly prominent part of the procurement system.  (April 2004)    

Courtesy of the Social Science Research Network

Please read Making Federal Information Technology Accessible:  A Case Study in Social Policy and Procurement.

By Joseph M. Goldstein and Vanessa L. Prieto

This article is a survey of Florida decisions of the district courts of appeal and the Division of Administrative Hearings involving government bid protests. All Florida state agencies and most local agencies must select contractors to provide goods or services through a competitive process. If a potential contractor objects to the process that a public entity uses to select the contractor or objects to the result of the process, then it may file a lawsuit challenging the public entity's action. With regard to state agencies, there is a comprehensive administrative process that must be followed. Local entities may elect either an administrative process, or an aggrieved potential contractor can file suit in circuit court.  Because there have been few, if any, recent articles on this topic, this article briefly discusses or cites to older, leading cases that are necessary to place certain issues in context. (April 2004)    

See article inside.  (This article is in MS Word in Rich Text Format (RTF) only and is a large document.)  (696 kb)

Special to Where in Federal Contracting? 

By Vernon J. Edwards

The Level of Confidence Assessment Rating Technique (LOCAR) is a form of risk assessment coupled with a scoring mechanism. In using it, an agency first determines the value of the promises that each offeror has made; it then determines how much confidence it has that each offeror will keep its promises; it then adjusts its assessments of each offeror’s promised value on the basis of its level of confidence in the offeror, converting promised value to expected value; finally, the agency considers its assessment of each offeror’s expected value when making nonprice/price tradeoffs in order to determine which offeror represents the best value.  In this article, the developer of LOCAR explains how it works. (April 2004)    

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By Frederick J. Lees

In 1979, the Office of Federal Procurement Policy considered consolidating the various Boards of Contract Appeals (BCA) without taking action.  In 2002, the White House again proposed the consolidation of the eight civilian BCAs into a single civilian BCA as part of a proposal to help small businesses.  On the other hand, the House Small Business Committee sought to expand the number of BCAs with two new "panels" to hear the disputes of small businesses.  In this article, the author looks at how small businesses use the current BCA system, explains and compares the White House and Congressional proposals, describes the non-contract duties assigned to BCAs, provides statistics on the BCAs' workloads, and offers specific recommendations on how the BCAs can be consolidated.  As part of this article, the author provides specific information on techniques small businesses are using at the current BCAs and provides striking statistics on the decline in workload at the BCAs.  (April 2004)    

Courtesy of the Social Science Research Network

Please read Consolidation of Boards of Contract Appeals:  An Old Idea Whose Time Has Come?

By Steven L. Schooner, Senator Susan M. Collins, Richard J. Bednar, Steven A. Shaw, Danielle Brian, James J. McCullough, John S. Pachter, Marcia G. Madsen, Christopher R. Yukins, and Abram J Pafford

This is a discussion of emerging issues related to the suspension and debarment of contractors that was hosted by the George Washington University Law School's Government Procurement Law Program.  Contributors to the discussion include individuals from the the U. S. Senate, the major buying agencies, the oversight community, and the private sector. The discussions provide a thorough analysis of concerns about the policy, a recent high-profile case involving a major contractor, the propriety of awarding new government work to excluded firms, the procedural importance of a contractor's response to the allegations of misconduct, the evidence supporting a criticism that the existing suspension and debarment policy fails to deter improper activity by major contractors, and issues facing contractors.  (February 2004)   

Courtesy of the Social Science Research Network

Please Read Suspension and Debarment:  Emerging Issues in Law and Policy

Special to Where in Federal Contracting? 

By Vernon J. Edwards

Put the Federal Acquisition Regulation (FAR) on a diet?  After nearly 20 years, maybe it is time for it to slim down.  For example, FAR 1.602-1(b) says: “No contract shall be entered into unless the contracting officer ensures that all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have been met.”   However, is it possible for any human to provide assurance that a contract complies with the thousands of pages of the FAR? If not, it is time for the author's modest proposal.  (February 2004)    

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By Steven L. Schooner

Courtesy of the Social Science Research Network

Does implementation of the federal government's competitive sourcing policy rely on smoke and mirrors?  Are we shrinking the government workforce only to grow the contractor workforce?  Can the reduced number of government contracting personnel effectively manage the increasing workload of service contracts?  In a new article, the author identifies problems with the government's competitive sourcing initiative and concludes that, without drastic change, it is doomed to fail.  (January 2004)         

Please Read Competitive Sourcing Policy: More Sail Than Rudder?

By Dan Guttman

Courtesy of the Social Science Research Network

This article begins with the 20^th century reforms in which the federal government deployed private contractors to perform the basic work of government.  The author reviews the premises of these reforms, argues that the reformers identified problems associated with the balance between governmental and third party workforces, and explains that the reformers left these problems for future reformers to sort out.  As a result, the author explains that this country never debated and developed a coherent legal and cultural framework to deal with the present reality—a shadow government that operates outside the cognizance of the public, and in too many instances, outside the cognizance of the official government workforce.   However, the author claims that now, there is an opportunity to develop a reasoned vision to hold contractors and other third parties accountable in the present reality.  (January 2004)         

Please Read Governance by Contract:  Constitutional Visions; Time for Reflection and Choice.

The Time-and-Materials Contract: The Time Has Come For A Long, Hard Look

Special to Where in Federal Contracting? 

By Vernon J. Edwards

The use of time-and-materials contracts has long been controversial because they are considered to be extremely disadvantageous to the buyer.  Over the last three fiscal years, there has been a steady increase in their use and this increase in use will undoubtedly continue as a result of the recent enactment of the Services Acquisition Reform Act of 2003.  This article considers some of the issues associated with time-and-materials pricing and analyzes the government’s payment terms for these contracts.  The author concludes that these contracts are now being used in ways that differ significantly from the old paradigm of short-term, simple, small scale, blue collar tasks such as equipment overhaul and repair.  If government regulators determine that changes are needed to the Federal Acquisition Regulation, the author provides recommendations for the regulators to consider.  (January 2004)

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By Robert Antonio

If any contract type can be referred to as the "black sheep" of federal contracting, it surely is the fixed-price incentive (firm target) contract (FPIF).  The FPIF was a primary issue in the enactment of the Truth in Negotiations Act in 1962 and it was at the forefront of the billions in shipbuilding overruns in the 1970s and 1980s.  However, it is a valid contract type that is recognized in the Federal Acquisition Regulation.  Capable of hiding huge anticipated cost overruns to be paid by the taxpayer, it bears the name "fixed-price."  Even with its sordid past, the author believes the FPIF has a place in contracting when it is used as it is intended.  In this article, the author explains the FPIF's key features, how it works, how it has been abused, and how a bad FPIF can be identified.  (November 2003)

See article inside.  (View or print a copy in MS Word)  (224 kb)

By Thomas D. Carroll

In 1997, the Army's Wholesale Logistics Modernization Program (WLMP) started a revolution.  Faced with reengineering the Army's wholesale logistics business processes, the new Federal Acquisition Regulation (FAR) Part 15 Rewrite, and innovations in electronic communication, the WLMP went all the way.  This article leads the reader through the WLMP contracting process by showing how it applied the Rewrite's terms for "clarifications", "communications", "competitive range", and "negotiations" and how it applied electronic submission of proposals and source evaluation.  The process is still fresh years after contract award.  This article is recommended for all who are involved in contracting including Procurement Executives, Heads of Contracting Activities, future source selection officials, and all contract specialists.  (June 2003) 

See article inside.  (View or print a copy in MS Word)  (86 kb)

Special to Where in Federal Contracting? 

By Vernon J. Edwards

Boiled down to its essence, choosing a contractor in a competitive acquisition is a matter of information processing. The decisionmaker collects information about alternative choices (competing firms), assesses each alternative on the basis of specified criteria (evaluation factors), and then compares each alternative to the others on the basis of those assessments in order to rank them and determine which is best. As a general rule, the more information that an evaluation panel must process, the more time and/or personnel that it will need in order to process it, and the more information that the decisionmaker will have to consider when he or she compares the competitors to determine which is best.  In this article,  the author reviews current procedures and practices to collect and evaluate this information and makes suggestions to streamline the source selection process.  (April 2003)

See article inside.  (View or print a copy in MS Word)  (114 kb)

By Steven L. Schooner

Courtesy of the Social Science Research Network

Members of the federal contracting community are aware of the existence of the U. S. Court of Federal Claims.  Among other things, the Court hears bid protests and contract disputes.  Recently, the U. S. Court of Federal Claims celebrated its 20th anniversary and the author attended.  At the conference, he asked—is the Court of Federal Claims needed?  This article provides a straightforward analysis of what the Court does, who else does it, and the significance of the Court's role in its areas of jurisdiction.  After analyzing the data and evaluating the alternatives, the author provides a nicely supported answer to his question.  (December 2002)         

Please Read The Future:  Scrutinizing the Empirical Case for the Court of Federal Claims

By Steven L. Schooner & Christopher R. Yukins

Courtesy of the Social Science Research Network

The international trade community increasingly focuses upon the purchasing practices of nation states. Developing nations and states seeking to improve their procurement systems expect to glean lessons from the evolution of procurement law regimes in developed nations, including the United States. To the extent that procurement of the United States is perceived as a model, the global community has been intrigued by its efforts to adopt more commercial practices and buy more commercial items. This paper sounds a cautionary note to developing states. Efforts to conform private sector models to government procurement regimes - no matter how efficient or practical - may prove inconsistent with the expectations of trade negotiators and could run contrary to the framework of the World Trade Organization's Government Procurement Agreement.  (November 2002)      

Please read Model Behaviour?  Anecdotal Evidence of Tension between Evolving Commercial Public Procurement Practices and Trade Policy.  

By Vernon J. Edwards

We all know that Wilbur and Orville Wright made their first powered flight on December 17, 1903.  However, did the brothers also play an important role in performance-based contracting?  Many of us have acquired copies of the specification from the Wright brothers' contract with the U.S. Army for a heavier-than-air flying machine.  The specification includes performance requirements and appears to include incentives and disincentives related to that performance.  Does that make it a performance-based contract?  In a thoroughly researched article, Vern Edwards takes us back to the early 1900s and provides us with the answers.  (July 2002)      

See article inside.  (88 kb)

By Steven Kelman, with his approval

Courtesy of the John F. Kennedy School of Government, Harvard University

Over the past decade, the federal government's contracting system was changed to make it less rule-bound.  These changes were concentrated in the areas of business strategy and source selection and included process streamlining, the use of best value source selections, the use of commercial items, and partnerships between government and industry.  However, there were few changes in the area of contract administration which was largely a stepchild of contract reform.  In this paper, Steven Kelman, Professor of Public Management at the John F. Kennedy School of Government, Harvard University, looks at the contract administration issue and addresses two questions:  (1)  What needs to be done well if contract administration in particular is to become a core competence for government, as part of a larger competence in contracting management? and (2) Is what needs to be done likely to be an attractive job to which government has some prospect of recruiting talented people?   (May 2002)

Please read Remaking Federal Procurement  (pdf. file 316 KB)

By Randall J. McFadden, with his approval

In the 1990s, the Department of the Air Force initiated a competitive sourcing initiative for non-core activities with great expectations for increased performance and reduced cost.  However, Randall McFadden, Director of Headquarters, Air Combat Command, Program Management Squadron, notes that the Department had no idea how difficult or complicated this initiative would prove to be.  In this study, the author explores the cultural, process, and execution barriers that must be mitigated to perform effective outsourcing.  (May 2002)

See article inside. (pdf file - 86 KB )  

By Jacques S. Gansler, with his approval

Courtesy of the The IBM Center for the Business of Government

When considering government contracting, Jacques Gansler, Director, Center for Public Policy and Private Enterprise at the University of Maryland, explains that people tend to focus on how the government contracts for an item.  The author argues that, to achieve long-term effectiveness and efficiency, three additional issues in  government contracting need to be considered.  These three additional issues include:  Who does the buying?; What do they buy?; and From whom do they buy?  (April 2002)

Please read A Vision of the Government as a World-Class Buyer:  Major Procurement Issues for the Coming Decade

By Wendell C. Lawther, with his approval

Courtesy of the The IBM Center for the Business of Government

How should the government acquire complex services and products?  Will traditional contractor-customer relationships suffice or is a public-private partnership more appropriate?  Wendell C. Lawther, Associate Professor of Public Administration at the University of Central Florida, provides three levels of complexity for services and products and discusses the appropriate government-contractor relationship that is best suited for quality performance under each scenario.  The author further explains that the contract administration function will continue to grow in importance.  (April 2002)  

Please read Contracting for the 21st Century:  A Partnership Model

It’s Time to Use the Legislative History of the Federal Acquisition Regulation

By Cyrus E. Phillips, IV

Have you seen the legislative history supporting the Federal Acquisition Regulation?  No?  Think again.  In accordance with federal law, Cy Phillips shows us that the intent of the Federal Acquisition Regulatory Council appears in Federal Acquisition Circulars.  However, he also points out that the Comptroller General, in deciding bid protests, ignores the intent of the writers of the Federal Acquisition Regulation.  What are the consequences?  In a carefully documented argument, he leads the reader to the laws that require the Council to document its intent, to a court case that identifies the legislative history as powerful evidence, and to Comptroller General decisions that ignore the intent of the Federal Acquisition Regulatory Council.  (April 2002)  

See article inside.   

Desiderata:  Objectives for a System of Government Contract Law

By Steven L. Schooner, with his approval  

Courtesy of the Social Science Research Network

Steven L. Schooner addresses nine goals that are frequently identified for government procurement systems.  Using the United States procurement system as an example, he explains this government's basic approach to contracting.  Although the author acknowledges that these nine goals are not an exhaustive list, he explains that they provide sufficient options to generate debate amongst scholars, policy makers, legislators, and buyers and sellers.  Whether you are from the United States government, its state and local governments, or a government from another nation, this article provides insight into the conflicting goals of United States contracting and what this government considers important.  (March 2002)

Please read Desiderata: Objectives for a System of Government Contract Law.

By Vernon J. Edwards

In October 2000, Vern Edwards introduced us to the award-term incentive (Award Term:  The Newest Incentive).  Now, he is back with a status report on this incentive.  From Fiscal Year 2001, he selected 49 different award-term incentive provisions used by federal agencies.  In his new article, he identifies the agencies that used the incentive, the acquisitions in which it was used, the incentive structures, and the incentive clauses.  (February 2002)  

See article inside.

Commercial Purchasing:  The Chasm Between the United States Government's Evolving Policy and Practice.

By Steven L. Schooner, with his approval

Courtesy of the Social Science Research Network

Steven L. Schooner, an Associate Professor of Law at the George Washington University Law School, provides a description of the federal government's efforts to make its purchasing more commercial.  The author identifies impediments to this effort that derive from the nature of government, the specific needs of the government, and the public's expectations regarding the expenditure of public funds.  The author suggests that the government is well served in attempting to become more commercial, but divining a happy medium - or determining just how commercial to become - is a daunting task.  (January 2002)

Please read Commercial Purchasing:  The Chasm Between the United States Government's Evolving Policy and Practice.  

Articles from 1999