154 research outputs found

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

    Get PDF
    This Article discusses the Federal Circuit\u27s 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\u27s 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

    Competitive Sourcing Policy: More Sail than Rudder

    Get PDF
    This essay predicts that the Bush administration\u27s 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\u27s unwillingness to appreciate the policy\u27s 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\u27s future

    Look Before You Lend: A Lender’s Guide to Financing Government Contracts Pursuant to the Assignment of Claims Act

    Get PDF
    This Article briefly summarizes the origin of the Assignment of Claims Act, discusses the lender\u27s ability to obtain a valid assignment of moneys due or to become due under a government contract (but not the numerous other assignment issues that a government contracts practitioner might confront), analyzes the priorities of competing claims against the government for payment of government receivables, and describes the procedure for asserting a claim against the government for payment

    Emerging Policy and Practice Issues (2015)

    Get PDF
    This paper, presented at the West Government Contracts Year in Review Conference (covering 2014), attempts to identify the key trends and issues in U.S. federal procurement for 2014. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement, grant, and defense spending trends and attempts to predict what lies ahead, particularly with regard to legislative and executive activity (which, this year, was highlighted by Executive Order activity). The paper discusses, in addition to data, changes to OFPP and DoD leadership and the continued Defense Department Better Buying Power Initiative (now in version 3.0) and acquisition performance measurement (or metrics)

    COMMERCIAL PRODUCTS AND SERVICES: Raising The Market Research Bar Or Much Ado About Nothing?

    Get PDF
    This short piece discusses the Federal Circuit\u27s recent decision in Palantir USG, Inc. v. United States, No. 17-1465 (Fed. Cir. September, 2018), affirming that “the Army failed to determine whether commercial items meet or could be modified to meet the agency’s needs and that, by failing to do so, the Army acted in an arbitrary and capricious manner in violation of 10 U.S.C. § 2377.” The decision appears to tilt the balance towards “commercial products” and “commercial services” (recently redefined in the 2019 NDAA § 836; 41 U.S.C. §§ 103, 103a), in effect, mandating that procuring agencies use Federal Acquisition Regulation (FAR) Part 12 commercial item procedures despite the (very real) possibility that the Government’s needs might not be met by a solution from the commercial marketplace. As the essay notes, such a standard seems inordinately, arguably inappropriately, low. The most obvious takeaway from Palantir derives from one of the most basic tenets of statutory interpretation: when Congress uses the word “shall,” rather than, for example, “may” or “should,” its direction is mandatory (rather than discretionary). Less obvious, but potentially more important, is the reminder that that contracting agencies get no credit for conducting market research if they do not subsequently consider or rely upon that market research

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

    Get PDF
    Staggering numbers of contractor personnel have supported, and continue to support, American combat and peace-keeping troops and the government\u27s 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\u27s, 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\u27s Congressionally-mandated acquisition workforce reductions and the Bush administration\u27s 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

    ENHANCED DEBRIEFINGS: A Toothless Mandate?

    Get PDF
    This short piece discusses the (alleged) manner in which the Department of Defense (DoD) conducted the disappointed offeror\u27s post-award debriefing following the award of the 10billion,10 billion, 10-year Joint Enterprise Defense Infrastructure (JEDI) cloud computing contracting opportunity. While the quality of DoD’s debriefing is unlikely to alter the outcome in the pending protest litigation, it seems inconsistent with policy, the current trend favoring greater transparency, and the recent Congressional mandate for “enhanced debriefings.” The piece suggests that, consistent with decades of study and experience, debriefings make sense, but only if they are informative or, more to the point, responsive. Conversely, formalistic debriefings serve no purpose, waste government resources, and frustrate private sector offerors that invested valuable resources preparing lengthy proposals

    A Random Walk: The Federal Circuit\u27s 2010 Government Contract Decisions

    Get PDF

    Foreword to Scholarly Writing: Ideas, Examples, and Execution

    Get PDF
    This foreword recommends the forthcoming second edition of Scholarly Writing: Ideas, Examples, and Execution by Jessica L. Clark and Kristen E. Murray. The book, published by Carolina Academic Press, is a welcome tool and useful resource for students embarking on their scholarly writing endeavors. Having supervised hundreds of LL.M. candidates struggling to complete a thesis, J.D. students attempting to fulfill a scholarly note requirement dominating their second-year law journal experience, and J.D. and LL.M. candidates writing seminar papers or independent research and writing projects, the author encourages students to invest in Scholarly Writing as a helpful and instructive lifeline. The author recommends the book not only to students writing scholarly papers, but also to faculty colleagues supervising students’ scholarly writing projects. The book’s companion website provides links to valuable examples, such as the student notes and other resources mentioned throughout the book. The site also provides updated information about scholarly writing developments and resources

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

    Get PDF
    This brief paper discusses the Obama administration\u27s 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
    • …
    corecore