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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:
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:
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 brief paper proffers a conceptual model for procurement reform in the United States today. The paper 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 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.

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:
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 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.

National Defense Authorization Act , procurement reform, lead systems integrators, Berry Amendment, commercial contractors, GAO

Abstract:
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.

Federal procurement, information technology, accessibility, disability, handicap, socioeconomic

Abstract:
As Hurricane Katrina relief efforts grow into the billions of dollars, the U.S. Congress is considering additional legislation to liberalize procurement, including H.R. 3766, co-sponsored by Representatives Kenny Marchant and Tom Davis. In these comments on the proposed legislation, Professors Christopher Yukins and Joshua Schwartz asked whether the proposed changes, which would eviscerate competition for most procurement related to disaster relief, are truly necessary. Professor Yukins suggests that, though it might in some circumstances be necessary to dismantle the federal regulatory regime to accommodate a wave of new firms in the federal market, there is too little evidence yet to 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.

public procurement, emergency procurement, federal procurement policy

Abstract:
This article reports on the United Nations Commission on International Trade Law (UNCITRAL) review of electronic reverse auctions in procurement systems around the world. The article describes the U.S. experience, including the stalled regulatory initiative regarding reverse auctions. Drawing on the literature and on UNCITRAL studies from procurement systems in Asia, Europe and Latin America, the article cites lessons from other nations' use of reverse auctions. In particular, the article discusses the European Union's new rule on reverse auctions, which is probably the best example, worldwide, of a careful attempt to regulate reverse auctions. The article discusses traditional questions in reverse auctions - when is it appropriate to use reverse auctions - and also addresses the more difficult question of when it is probably inappropriate to use reverse auctions. Given these recurring problems, and the pitfalls inherent in reverse auctions, the authors argue that, on balance, reverse auctions should be regulated, and should not be left to proliferate without guidance and structure. Finally, they suggest that the reverse auctions debate itself marks a watershed in U.S. procurement policy: perhaps for the first time, thanks to advances in communications and comparative study, U.S. policymakers will be able to draw directly on other nations' successes and failures in addressing a complex and difficult issue of procurement policy.

Electronic reverse auctions, UNCITRAL, model procurement law, comparative public procurement, abnormally low bids, unrealistic pricing

Abstract:
A Working Group of the United Nations Commission on International Trade Law (UNCITRAL) is working on potential reforms to UNCITRAL's Model Procurement Law and its Guide to Enactment. This article, written by several advisors to the U.S. delegation to the UNCITRAL Working Group, reviews the Working Group's progress on several important fronts. The Working Group has reached initial consensus on a number of difficult procurement issues, including electronic commerce, reverse auctions and framework contracts, and significant progress has been made in a number or other areas, including the procurement of services, the strengthening of procurement remedies (known in the United States as bid protests), and the utilization of socioeconomic policy tools.

UNCITRAL, Model Procurement Law, developing nations

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:
The ABA International Procurement Committee has prepared this update on a number of key international issues in 2005, including: the proceedings at the United Nations Commission on International Trade Law, recent developments involving the Trade Agreements Act in U.S. domestic procurement, and the Organization for Economic Cooperation and Development's (OECD) work on untying foreign assistance.

Procurement, UNCITRAL, OECD, Trade Argeement Act

Abstract:
The United Nations Commission on International Trade Law (UNCITRAL) has commissioned a working group, with delegations from many industrialized and developing nations, to reform and update the UNCITRAL Model Law on Procurement of Goods, Construction and Services. The working group is currently reviewing reforms on a number of fronts. This essay focuses on three areas of reform in particular - electronic communications, electronic reverse auctions, and unrealistically low bidding - to gauge whether lessons from the UNCITRAL debate may be useful for reform in the U.S. procurement system. As the essay reflects, the international debate surrounding UNCITRAL reform does in fact yield many lessons for U.S. policymakers. Indeed, the analysis suggests that the U.S. system may be at a point where it would be irresponsible not to consider comparative lessons from reforms abroad, to ensure that U.S. procurement policy draws thoughtfully upon lessons learned from other procurement systems around the world.

procurement, electronic communications, reform, UNCITRAL, reverse auctions

Abstract:
In the wake of Hurricane Katrina, the U.S. Congress passed new exceptions to U.S. procurement rules. The most important new exception, passed at the recommendation of the Bush administration, raised the limit for micro-purchases - essentially unregulated purchases - from $2,500 to $250,000. In practice, this will mean that Katrina relief purchases may be made, up to $250,000 per order, without any effective transparency or competition, and without honoring the many socioeconomic requirements that are an important part of the U.S. procurement system. This comment reviews that emergency legislation, and suggests that the new law, by abandoning basic principles of sound procurement, raises real risks in the post-Katrina relief effort, including risks of corruption and risks of gross failures in best value procurement.

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

Abstract:
Traditionally, procurement reform and anti-corruption initiatives have followed separate tracks, although they share a common purpose: a sound government, supported by a robust and politically legitimate procurement system. Now two initiatives at the United Nations may integrate those disparate strands. The United Nations Commission on International Trade Law (UNCITRAL) is working to reform the UNCITRAL Model Law on Procurement of Goods, Construction and Services(the UNCITRAL Model Procurement Law), an important instrument for harmonizing, and strengthening, procurement systems throughout the developing world. At the same time, the U.N. Convention Against Corruption, a sweeping commitment to fight corruption internationally, has been signed by 140 countries. This paper reviews how the two U.N. initiatives can work together, and concludes that the UNCITRAL Model Procurement Law provides precisely the sort of structured system of rules called for by the Convention. Moreover, by containing corruption, the U.N. Convention could make it possible to loosen at least some of the cautious constraints that confine most procurement systems, including those under the UNCITRAL Model Procurement Law. Ultimately, therefore, the U.N. Convention Against Corruption, if prudently implemented, could serve as a catalyst for procurement reform around the world. More broadly, the two U.N. initiatives show the powerful synergies that can be gained by carefully coordinating procurement reform and anticorruption efforts.

UNCITRAL Model Procurement Law, Corruption, competition, integrity, transparency

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:
These two papers, presented at the West Government Contracts Year in Review Conference (covering 2008), discuss developing issues in international public procurement. Among other things, the Anderson paper addresses the role of the World Trade Organization in public procurement; other organizations -- such as the World Bank, the UN, and the OECD -- that play increasingly important roles; the role of competition or antitrust policy vis-a-vis procurement; and discrete issues such as public-private partnerships and framework agreements. The Yukins paper addresses, among other things, protectionist pressues that are being applied to the crisis-generated stimulus spending packages. The Yukins paper recommends that the Obama administration should tailor any fiscal stimulus procurements to comply with existing international free-trade agreements, and continue to advocate, quite forcefully, for building capacity and reform in procurement around the world.

government contracts, international public procurement, World Trade Organization, Government Procurement Agreement, protectionism, international trade, stimulus spending

Abstract:
These papers, presented at the West Government Contracts Year in Review Conference (covering 2007), discuss the policy and legal frameworks for opening the Chinese procurement markets. The first paper discusses the process for accession to the World Trade Organization (WTO) Agreement on Government Procurement (GPA) and explores some related issues and developments. The author concludes that China's initiation of its GPA accession process may mark a watershed in the evolution of international regulation of public procurement markets. The latter paper focuses upon challenge mechanisms or bid protests in the context of the WTO GPA. While China's membership in the GPA will open the U.S. procurement market to China, Professor Yukins suggests that what will likely remained unresolved is how vendors offering goods from China will enforce the GPA's market-opening provision in the U.S. federal procurement system.

public procurement, World Trade Organization, Government Procurement Agreement, accession, China, bid protest, trade, market access

Abstract:
In this brief comment, Professor Christopher Yukins reviews a proposed rule to require major federal contractors to put corporate compliance systems in place. By shifting more compliance requirements to the Federal Acquisition Regulation itself, and by giving those requirements real force, the proposed rule will enhance integrity in the procurement system. Professor Yukins argues, though, that to improve on the proposed rule, regulators should recognize that the market has moved a step beyond the proposed rule: most contractors already benchmark their compliance systems against the U.S. Sentencing Commission's more demanding standards, and some contractors have gone even further, to integrate their corporate compliance efforts with broader quality assurance systems.

Abstract:
This year, the International Procurement Committee's YIR contribution is divided into two sections. Section I reports on the important work being carried out on, among other things, framework contracting and electronic procurement by Working Group I of the United Nations Commission on International Trade Law (UNCITRAL). Section II deals with the World Bank's continued campaign to eliminate corruption in procurement through reform of the Bank's sanctions process, which complements its Voluntary Disclosure Program.

international procurement, UNCITRAL, corruption in procurement, Voluntary Disclosure Program

Abstract:
On August 21, the new European directive on defense and security procurement, Directive 2009/81/EC, entered into force. See, e.g.,EU Adopts New Defense and Security Procurement Directive, 6 IGC ¶ 65. Previously, most European defense procurement was considered exempt from the European procurement directives that have harmonized procurement, with greater transparency and competition, across Europe. Under the new defense directive, all but the most sensitive defense and security procurements in Europe will have to be conducted under rules consistent with the new directive.

From an American vantage point, however, it is not yet clear how the new directive will be implemented. If the defense directive merely brings new competition and transparency to the European procurement markets, the directive will be a welcome improvement in what was traditionally a closed and uncompetitive market. But if, in practice, the directive is used as an excuse to discriminate against U.S. exporters - or if it is perceived as a tool of discrimination - the directive threatens to trigger serious trade frictions in the transatlantic defense markets.

public procurement, international trade, government contracts, international public procurement, European defense directive, transatlantic defense