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

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

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

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)

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?

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

Brand Name or Equal: Without Equal, It\u27s Not Competitive

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\u27s 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\u27t mean they are not ignored

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

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

Foreword to Scholarly Writing: Ideas, Examples, and Execution

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

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

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