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Abstract:
This brief paper - presented at a symposium presented for a developing nation engaged in drafting of a government procurement law - offers a diverse menu of aspirations frequently mentioned in the context of public purchasing. This paper introduces nine goals frequently identified for government procurement systems: (1) competition; (2) integrity; (3) transparency; (4) efficiency; (5) customer satisfaction; (6) best value; (7) wealth distribution; (8) risk avoidance; and (9) uniformity. The exercise of identifying aspirations is important, particularly because it is difficult for legislators or policymakers to articulate what they hope to achieve through a buying regime. While no system can achieve all of these goals, determining which goals are most important is a daunting, ever-evolving challenge.

Abstract:
Staggering numbers of contractor personnel have supported, and continue to support, American combat and peace-keeping troops and the government's Herculean reconstruction efforts in Iraq. Yet recent experiences in Iraq, particularly allegations that contractor personnel were involved in inappropriate and potentially illegal activities at the Abu Ghraib prison, expose numerous areas of concern with regard to the current state of federal public procurement. Sadly, because these incidents coincide with a series of procurement scandals, the likes of which the government has not experienced since the late 1980's, they cannot be dismissed so easily as anomalies.

The Abu Ghraib abuses suggest at least two matters that cry out for government-wide attention and intervention. First, the federal government must devote more resources to contract administration, management, and oversight. This investment is an urgent priority given the combination of the 1990's Congressionally-mandated acquisition workforce reductions and the Bush administration's relentless pressure to accelerate the outsourcing trend. Second, the proliferation of interagency indefinite-delivery contract vehicles, and the perverse incentives that derive from these fee-based purchasing vehicles, have prompted troubling pathologies in public contracting that require correction and constraint.

public procurement, government contract, outsourcing, acquisition workforce, Abu Ghraib, Iraq

Abstract:
The George Washington University Law School's Government Procurement Law Program hosted this discussion of emerging issues related to suspension and debarment of contractors and attempted to include voices representing the interests implicated by the policy: the legislature, the major buying agencies, the oversight community, and the private sector. Given the draconian nature of this administrative remedy, far too little attention has focused upon the topic. For most successful government contractors, any perceived threat of disqualification was hollow. But recent events, proceedings against high-profile firms such as Enron, Arthur Andersen, Boeing, and MCI/WorldCom, cast these remedies into the spotlight.

Professor Schooner introduces the discussion and raises concerns regarding the purpose of the policy, its effectiveness, the fairness of its application, recent activity which suggests the politicisation of the process, and potential ramifications in terms of credibility and public trust. U.S. Senator Susan M. Collins discusses what lessons might be learned from a recent, high-profile matter that resulted in the temporary exclusion of a major player in the government marketplace. Richard Bednar, a former Army debarment and suspension official who coordinates the Defense Industry Initiative on Business Ethics and Conduct (DII), comments on: (1) the imputation of individuals' actions to the corporation; (2) suspension or debarment for conduct unrelated to public contracting; and (3) the propriety of awarding new government work to excluded firms. Steven A. Shaw, the U.S. Air Force's debarment and suspension authority, addresses the procedural importance of a contractor's response to the allegations of misconduct and stakes out the policy position that a broad range of contractor misconduct can, and indeed should, justify suspension or debarment.

Danielle Brian, executive director of the Project on Government Oversight (POGO), offers empirical evidence to bolster her criticism that the existing suspension and debarment regime fails to deter improper activity by major contractors operating within the federal public procurement space. James J. McCullough and Abram J. Pafford caution contractors, particularly commercial firms new to the public procurement arena, to be cognizant of the risks associated with the government's suspension and debarment regime. John S. Pachter reinforces this message, suggesting that contractors employ defensive measures intended to avoid suspension and debarment, and specifically reminding firms of the potential benefits of vigilant internal compliance and voluntary disclosures of improper activity. Marcia G. Madsen then criticizes the current debarment and suspension regime, suggesting that both the system and the Government's implementation of that system lag behind the Government's renewed emphasis on corporate integrity and heightened expectations with regard to corporate governance. Finally, Professor Christopher R. Yukins asserts that a more limited focus, or narrowing the potential bases for suspension and debarment, might ultimately enhance the regime's credibility and, in so doing, enhance public trust.

contractor disqualification, suspension, debarment, public procurement, corruption, oversight

Abstract:
During the 1990's, the United States government accelerated its efforts to adopt more commercial practices and buy more commercial items. In doing so, the government sought to: (1) mimic the most successful buying practices of businesses and consumers and (2) rely more heavily upon existing goods and services already produced in the marketplace (rather than demanding creation of government-unique versions). This paper introduces the government's efforts to make its purchasing regime more commercial through the introduction of new policies, vocabulary, purchasing authorities, and practices. The paper unveils a host of impediments that restrain the government from evolving into a truly commercial purchasing regime; impediments that derive from the nature of government, the specific needs of the government, and public's expectations regarding the expenditure of public funds. Ultimately, the paper 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.

public procurement, commercial contracting

Abstract:
This paper, presented at the West Government Contracts Year in Review Conference (covering 2004), attempts to identify the key trends and issues for 2005. The paper suggests that two rather unique items merit particular attention: the Darleen Druyun saga and the plight of contractors working in Iraq. Both frame compliance issues in stark relief. At the same time, we address what we perceive as the far more vexing issue that permeates federal procurement today: the excessive reliance upon, and corresponding misuse of, task-order contracting. We also discuss procurement spending trends (and the inevitable belt-tightening that must follow); contract-related litigation trends; rewarding excellence in public procurement; and lessons learned from the European Union's procurement reform efforts.

government procurement, compliance, reverse auctions

Abstract:
This paper, presented at the West Government Contracts Year in Review Conference (covering 2005), attempts to identify the key trends and issues for 2006 in U.S. federal procurement. In an effort to make sense of the current reforms, the paper focuses upon what seems to be the common imperative underlying the various initiatives: the need to bring order to a procurement function as it devolves away from the Government user - what some might call the "devolution" or "outsourcing" of the contracting function. The paper also addresses emerging issues including, among others, the death of competitive sourcing; the acquisition workforce 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.

government contracts, public procurement, acquisition workforce, outsourcing, centralized purchasing, reverse auctions, conflicts of interest

Abstract:
This essay predicts that the Bush administration's competitive sourcing initiative will fail. Granted, the number of government employees will continue to shrink, while the number of contractor personnel serving the Government will methodically increase. But the Government's unwillingness to appreciate the policy's costs leads to the corresponding failure to identify, obtain, and invest appropriate resources needed to properly effectuate the policy. The Government simply lacks sufficient qualified acquisition, contract management, and quality control personnel to handle the outsourcing burden. Because the Government is ill-positioned to successfully out-source in a manner that generates higher quality services, lower prices, greater efficiency, or, ultimately, better government, an aggressive outsourcing policy will further expose long-standing problems in service contracting, including poor planning, inadequately defined requirements, insufficient price evaluation, and lax oversight of contractor performance. All of which lead to disquieting expectations for the Government's future.

public procurement, outsourcing, privatization, government contract law

Abstract:
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.

public procurement, acquisition workforce, strategic sourcing, federal procurement policy

Abstract:
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, we 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. We 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.

acquisition workforce, acquisition advisory panel, interagency contracting, government procurement, procurement data, competitive sourcing

Abstract:
This brief piece applauds the Government Accountability Office (GAO) for adding the management of interagency contracting to its High Risk List. It suggests that interagency acquisition, the poster child for the flexible, streamlined, businesslike approach of the 1990's acquisition reform movement, has become the federal procurement system's Achilles heel. It recommends that the government needs more qualified professionals to proactively craft results-oriented contracts and to manage effectively contractors' performance. Finally it suggests commencing a meaningful conversation about the appropriate role of businesslike models, generally, and fees, specifically, in governance.

interagency acquisition, task and delivery orders, contract management

Abstract:
This article discusses the National Performance Review's (NPR's) broad-reaching effort to reinvent government by making it more businesslike, focusing on its successful effort to reform the Federal procurement process. The article shows that the reformed system couples greatly increased buyer discretion with dramatically reduced oversight of government spending - both internal and external. This article asserts that this combination erodes the public's confidence in the procurement system, violates established norms, and is antithetical to a host of Congressional mandates and policies. More particularly, the article provides empirical evidence of the dramatic, sustained reduction in government contract related litigation during the 1990's. The article expresses concern because the trend coincided with two significant changes: (1) a large-scale Congressionally-mandated reduction in acquisition personnel, which materially reduced internal oversight, and (2) the sweeping NPR re-invention initiatives, which considerably increased purchaser discretion. The article offers a provisional list of explanations for the decrease in litigation. It asserts that, in this context, litigation - a form of external monitoring initiated by private attorneys general - is a public good. Reduced litigation relating to the award and performance of the government's contracts threatens the public's trust in the reinvention agenda. Litigants, in this context, serve the public interest while pursuing their own self interest. Moreover, the need for the private sector to provide this service increases as internal oversight decreases. The article suggests that, despite the success of procurement reform, the current paradigm elevates its facially attractive norms - efficiency and discretion - at the expense of other established, yet apparently undervalued, norms that guide the procurement system, e.g., transparency, integrity, and competition. It cautions that businesslike government has diluted existing internal and external oversight mechanisms and threatened sustained public confidence in the procurement system.

Abstract:
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 the U.S. procurement regime is perceived (at least by some) as a model, the global community has been intrigued by the United States government's efforts to adopt more commercial practices and buy more commercial items. Yet numerous impediments to a purely commercial public procurement model remain, because commercial practices are invariably less transparent, and raise troubling questions regarding competition and integrity. The paper thus 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 WTO's Government Procurement Agreement.

public procurement, commercial purchasing, government procurement agreement, world trade organization (WTO), transparency, competition

Abstract:
The 20th anniversary of the Federal Courts Improvement Act (FCIA) presents an opportunity to reflect upon the unique role of the United States Court of Federal Claims (COFC). The COFC has evolved into a jurisdictional catch-all, rather than a forum that serves a needed purpose. Although public contracts dominate the Court of Federal Claims' docket, the Court plays only a minor role in the field, and mere election of fora does not justify the Court's participation. Hence, this paper offers three reasons to challenge the viability of the Court's current mandate: (1) the Court is not a specialized court; (2) dispersal of the Court's docket would not unduly burden any receiving fora; and (3) because most of the Court's jurisdiction is concurrent and because (empirically) the Court is not the forum of choice, the benefits of forum election are illusory. Ultimately, the paper makes the empirical case that eliminating the Court could enhance efficiency and consistency, while reducing confusion in law and practice.

Abstract:
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.

public procurement, outsourcing, privatization, government contract law, acquisition workforce

Abstract:
Professor Emeritus John Cibinic, Jr. died on August 1, 2005. For three decades, he taught at the George Washington University Law School. Throughout that period, and until his passing, John made a huge and lasting contribution to the literature and practice of government contracting. These short pieces, authored by colleagues, students, and friends, offer a glimpse into the impact of John's full and productive life.

Abstract:
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. We 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). We 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.

acquisition workforce, acquisition advisory panel, Iraq, government procurement, procurement data, competitive sourcing, compliance, presidential candidates

Abstract:
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.

public procurement, competition, transparency, efficiency, customer satisfaction, best value

Abstract:
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 beleive 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.

Buy American, World Trade Organization, Government Procurement Agreement, Recovery Act, Federal Acquisition Regulations, Protectionism

Abstract:
It should come as no surprise that the Bush administration showed little interest in adopting Vice President Gore's ambitious, high profile National Performance Review (NPR) agenda. One area, however, where the Bush administration would do well to embrace the NPR's efforts is the plain language initiative. While it would be hyperbole to suggest that the NPR's efforts dramatically improved the clarity of the government's written communication (including statutes, regulations, policies, instructions, etc.), some progress was made. Yet it will take some time before a commitment to writing in plain, clear, precise English becomes a cultural (or governmental) norm. Even though the plain language movement lost its most well-placed executive branch advocate, champions outside the government may fill the void. In that context, Thomas A. Murawski's WRITING READABLE REGULATIONS is poised to make a valuable contribution. In addition to discussing the roots of the plain language movement and summarizing Murawski's approach to making governmental writing more accessible, this paper advocates for governmental investment in clarity in communication. To the extent that cost-benefit analysis only recently achieved prominence in our administrative state, it seems disingenuous to argue that the marginal cost of clear communication is not worth the investment. In a democracy, it is a shame that clear communication remains an aspiration, rather than a norm.

Abstract:
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 (presented at the 1999 Defense Systems Management College (DSMC) Acquisition Research Symposium) examines certain policy implications associated with the Truth In Negotiations Act (TINA), 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 re-visits the long-extinct Renegotiation Act and finds it less troubling than the existing quagmire. It analogizes to recent experience in the public utilities industry, which employs a sharing mechanism as an explicit, transparent means for addressing excessive profits. The paper proposes to simplify and decriminalize Federal procurement pricing and profit policy by drawing from the historical renegotiation experience. A transparent renegotiation regime (1) could be one less burdensome or complex element of a regulatory scheme that presents suppliers with a menu of regulatory options; (2) would allow contractors to select the approach that best corresponds to their own assessment of which contractual rules will minimize their costs; and (3) could permit the Government to share, directly or indirectly, in these increased efficiencies and savings.

Truth in Negotiations Act, TINA, Renegotiation Act, profit policy, government contracts, public procurement

Abstract:
This Article describes the doctrinal, functional, and moral flaws inherent in the Gulf Coast Recovery Act (GCRA), a United States Senate bill that would provide liability protection to government contractors engaged in disaster relief work in the areas devastated by Hurricane Katrina, as well as in future disaster areas. First, the Article discusses the history of the government contractor defense and finds that the protection provided by the GCRA is quite unlike the traditional government contractor defense. This Article further argues that this doctrinal departure cannot be justified on grounds of efficiency or fairness, as the GCRA allocates risk away from government contractors and the government and towards the disaster area residents and relief workers who are potential victims. Finally, this Article notes that even if the sort of protection provided by the GCRA may be justified under some conditions of market failure, there is no empirical evidence that government contractors in the Gulf Coast have experienced such conditions, and there are superior alternatives to the GCRA that could provide such protection while preserving a path for victim compensation. This Article concludes that the GCRA is an untenable solution to a problem that has not been proven to exist, and one that violates the basic principles of good government.

Hurricane Katrina, insurance and indemnification, government contractor defense, moral hazard, least cost risk avoider, superior risk bearer

Abstract:
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.

public procurement, government contracts, World Trade Organization, Government Procurement Agreement, acquisition workforce, stimulus, protectionism, Buy American

Abstract:
Following decades of international negotiations and agreements, the world's multi-trillion-dollar public procurement market appears to be maturing into a free, open international market. To reach that point, nations must lower a broad array of barriers to trade in procurement. As the U.S. experience demonstrates, purchasing agencies, laboring under the constraints of domestic preferences, may effectively seek to promote free trade. At the same time, a variety of international organizations, from the World Trade Organization to Transparency International, have developed tools and instruments - including model codes and explicit nondiscrimination agreements - that ease barriers to trade in procurement. To accelerate the erosion of these barriers, this Article suggests assessing progress in four potentially overlapping steps: nondiscrimination, a political decision; harmonization, an effort to coordinate the international instruments; rationalization, an effort to enhance the efficiency of regimes launched under the international instruments; and, institutionalization, an integration of the evolving international procurement norms into the legal fabric of the nations entering the international free market in procurement.

public procurement, domestic preferences, globalization, World Trade Organization, Government Procurement Agreement, Berry Amendment, information technology, framework agreements, interagency contracting

Abstract:
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.

contractor fatalities, defense acquisition, government contracts, Iraq, Afghanistan, outsourcing, private security, representative democracy

Abstract:
This paper, presented at the West Government Contracts Year in Review Conference (covering 2008), attempts to identify the key trends and issues for 2009 in U.S. federal procurement. In large part, the paper focuses upon the challenges facing the incoming Obama administration, which faces a number of interrelated, critical, systemic challenges that pervade the acquisition landscape. Federal procurement spending has exploded in this decade. As a result - and, in addition to decisions made during the 1990's - the Government is heavily outsourced, dependent upon contractors to an extent - in degree and in type - that makes many uncomfortable. To exacerbate matters, the Government lacks a sufficient acquisition workforce to responsibly manage its cadre of contractors (including an increasingly blended-military-contractor, civil servant-contractor, and/or military-civil servant-contractor-workforce). The failure to plan and staff the acquisition function in Iraq and Afghanistan, particularly, the ill-conceived and poorly-orchestrated reliance on arms-bearing (or private security) contractors in the battle area, will continue to generate bad procurement news and erode confidence. Thus, the foreseeable future will be dominated by a deeply ingrained, broad-based anti-contractor sentiment, which will manifest in the form of initiatives intended to achieve greater (pick your label) accountability, compliance, corruption control, ethics, integrity, transparency, etc. All of which signals turbulent times ahead, whether or not the new administration embarks upon an epochal public works program that would continue to fuel the breathtaking increases in procurement spending that have spanned this new century.

government contracts, public procurement, acquisition workforce, outsourcing, private military, private security contractors, procurement spending, Iraq, Afghanistan, Status of Forces Agreement, compliance, defense reform

Abstract:
These two short pieces discuss General Dynamics Corp. v. United States, in which the Ninth Circuit reversed what appeared to be the first successful use of the Federal Torts Claims Act (FTCA) by a government contractor to pursue a professional malpractice claim against a federal agency, awarding more than $25 million in damages due to professional malpractice committed by the Defense Contract Audit Agency (DCAA). The latter piece: (1) briefly summarizes the history of the case, explaining how a routine contractual compliance audit lead to a $25 million malpractice award; (2) introduces the discretionary function exception to the FTCA; (3) examines the application of the discretionary function exception in the context of prosecutorial discretion; (4) discusses two significant cases that demonstrate the fragile boundaries of the discretionary function exception; (5) describes guidance from the Department of Justice for government counsel faced with raising the discretionary function exception to dismiss FTCA actions; and (6) concludes by acknowledging that efforts to reign in the scope of the discretionary function exception to the FTCA are sure to continue. The earlier piece discusses the district court decision.

Federal Torts Claims Act (FTCA), discretionary function exception, accounting malpractice, government contracts

Abstract:
The 1970 D.C. Circuit ruling in Scanwell Labs. v. Shaffer, 424 F.2d 859, turned the issue of federal court jurisdiction over bid protest litigation into a legal experiment. Thirty years later, the putative sunset of statutory District Court jurisdiction, and a Congressional mandate that GAO undertake a comprehensive study of the need for concurrent jurisdiction, offered an opportunity to judge the success of this experiment. This brief paper reviews the history leading up to the GAO study; discusses how the protest regime helps ensure procurement integrity; critiques the scope and methodology of study; and, ultimately, argues that elimination of District Court jurisdiction hinders the opportunity of small businesses to challenge violations of federal procurement law.

Scanwell, protests, disappointed offeror litigation

Abstract:
This essay, included in a 1999 special issue examining the Contract Disputes Act (CDA) of 1978 at its twentieth anniversary, begins from the premise that the statute's critics have valid reason to perceive that the CDA fails to provide a "fair and balanced system of administrative and judicial procedures for the settlement of claims and disputes." The essay suggests a framework for a meaningful debate over what an improved and invigorated CDA should look like but, in the end, raises more questions than it answers. Its purpose is heuristic; to frame a debate (which many feel is long overdue) as to what the CDA should do and how it should do so. It introduces a then-recent effort to articulate core principles for government procurement dispute resolution, then deems the effort an unsatisfactory platform for heuristic analysis. It attempts to determine the necessity for a dispute resolution statute and suggests that the fundamental purpose for such legislation is no more than to waive the Federal Government's immunity from suit. The essay then turns to the breadth of an appropriate waiver. Finally, it examines a number of issues, such as the nature of judicial and administrative fora and the certification requirement, that permeate our present system. The essay concludes by suggesting, at very least, that we should ask the difficult questions.

Contract Disputes Act, litigation, sovereign immunity, administrative judges, boards of contract appeals, Court of Federal Claims, specialized courts