u.s. procurement law and practice professor christopher yukins the george washington university law...
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U.S. U.S. ProcuremeProcurement Law and nt Law and
PracticePractice
Professor Christopher YukinsProfessor Christopher Yukins
The George Washington University The George Washington University Law SchoolLaw School
LondonLondon
January 23, 2009January 23, 2009
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IntroductionIntroduction Professor Christopher Yukins is a former Professor Christopher Yukins is a former
Justice Department lawyer, with many Justice Department lawyer, with many years of experience in U.S. public years of experience in U.S. public procurementprocurement
He serves as an adviser to the U.S. He serves as an adviser to the U.S. delegation to the UNCITRAL working delegation to the UNCITRAL working group on reform of the UNCITRAL Model group on reform of the UNCITRAL Model Procurement LawProcurement Law
He is co-director of the Government He is co-director of the Government Procurement Law Program at The George Procurement Law Program at The George Washington University Law School, in the Washington University Law School, in the leading government procurement law leading government procurement law program in the United Statesprogram in the United States
He is also of counsel to the firm of Arnold He is also of counsel to the firm of Arnold & Porter LLP& Porter LLP
3Procurement Law Academic Procurement Law Academic CentersCenters
Washington, D.C.
Beijing
Birmingham
Nottingham.Paris
Bochum
Montpelier
Buenos Aires
4Other Professors in Other Professors in ProgramProgram
Joshua Schwartz
Fred Lees (emeritus)
Ralph Nash (emeritus)
John Cibinic (d. 2005)
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Steve Schooner’s Steve Schooner’s DesiderataDesiderata TransparencyTransparency IntegrityIntegrity CompetitionCompetition UniformityUniformity Risk AvoidanceRisk Avoidance Wealth DistributionWealth Distribution Best valueBest value Efficiency Efficiency (administrative)(administrative) Customer SatisfactionCustomer Satisfaction
6Historical Historical
Progression:Progression:U.S. ProcurementU.S. Procurement
Sealed Sealed BidsBids
Negotiated Negotiated Procurements Procurements (Competitive (Competitive
Dialogue)Dialogue)
Task Order Task Order Contracting Contracting
(Frameworks)(Frameworks)
7
0
20
40
60
80
100
120
140
1997 2001
WorkforceContract ActionsActs > $25kActs < $25k
Fewer Acquisition Workers – Expanding
Major Actions
8
Procurement
UN Convention Against UN Convention Against Corruption (Art. 9)Corruption (Art. 9)
UNCITRAL Model ProcurementUNCITRAL Model Procurement LawLaw
Public InformationPublic Information YesYes
Advance award criteria and Advance award criteria and publicationpublication
YesYes
Objective and predetermined Objective and predetermined criteria for awardcriteria for award
YesYes
Bid protest and appealBid protest and appeal MaybeMaybe
Measures to control procurement Measures to control procurement personnel – e.g., rules and codespersonnel – e.g., rules and codes
NoNo
Transparency, including in Transparency, including in budgeting and accountingbudgeting and accounting
YesYes
Resources in U.S. Resources in U.S. Procurement LawProcurement Law
Public Contract Law Journal
www..pclj.orgg
Quarterly Conferenc
es
Procurement
Lawyer
General Services Administration
Judge Advocate General’s School
Office of Federal Procurement Policy / acquisition.gov
House/Senate Armed Services Committees
Colloquia
Textbooks
Year in Review
Conference
LL.M. Progra
m
Westlaw, Briefing Papers,
Government Contractor, Int’l
Government Contractor,
Seminars, Etc.
Pubklaw.com
BNA Federal Contracts Reporter
DAU
World Bank
Lexis-Nexis
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12
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USSC Sentencing Guidelines - §8B2.1
Final FAR Rule:
Mandatory DisclosureSelf-reporting = sentencing factor§8C2.5.
Government may suspend/debar contractor for knowing failure by principal, for up to 3 years after final payment, to timely report – to both agency Inspector General and contracting officer – credible evidence of [1] a violation of certain federal criminal laws (fraud, conflict of interest, bribery or gratuity), [2] civil fraud, or [3] significant overpayment, in connection with award or performance or closeout of government contract or subcontract.
Cooperation = sentencing factor§8C2.5.
Full cooperation . . . but need not waive attorney-client privilege or attorney work product protections
No exception for commercial item contracts
Limited exceptions for commercial-item contracts
No exception for work performed abroad
No exception for contracts outside US
[Not tied to contracts]
Reporting clause flowed down to subcontracts over $5 million/120 days
ConclusionConclusion
Professor Christopher YukinsProfessor Christopher Yukins
[email protected]@law.gwu.edu
Tel. 202-994-9992Tel. 202-994-9992