A resource on public procurement practice, policy and law, from around the globe.
Author: Christopher Yukins
Professor Christopher Yukins teaches in the government procurement law program (founded in 1960) at The George Washington University Law School in Washington, D.C.
Please join the American Bar Association (ABA) Section of Public Contract Law’s Bid Protest Committee for our March 2024 meeting on “Agency-Level Protests.” Topics include:
Executive Order 12979 and the history of agency-level protests;
Factors to consider when deciding whether to bring an agency-level protest;
Jurisdictional and standing issues affecting agency-level protests;
Where and when to file an agency-level protest;
What happens to the contract award while an agency-level protest is pending;
What, if anything, the protester is provided in terms of an administrative record; and
How agency-level protests are decided and reported.
We hope that you can join us for this highly informative presentation. Lunch will be provided for those who RSVP for in-person attendance. Government personnel will have the option to pay $10 for lunch.
Panelists:
Christopher Yukins, Lynn David Research Professor in Government Procurement Law, GW Law (author, ACUS report on proposed agency-level protest reforms, and AIRC congressionally mandated report on DoD bid protests)
Scott Flesch, Member, Miller & Chevalier Chartered
Lt. Col. Bruce Mayeaux, U.S. Army, Deputy Chief Contract & Fiscal Actions Division
Rachel Park, Integrity Officer, Office of the U.S. General Services Administration Suspension & Debarment Official and Agency Protest Official
Professor Andrea Sundstrand – Stockholm University
Please feel free to join this interesting presentation on EU defense procurement and the decisions of the European Court of Justice. Professor Sundstrand of Stockholm University will discuss her article on the intersection of Member State autonomy over defense matters and the European Union’s authority to direct procurement rules.
Wednesday, 14 February 2024 – 3 pm – GW Law School, 2000 H Street NW, Washington DC – Stockton 306
On December 5, 2023 GW Law’s Christopher Yukins participated in a roundtable of distinguished experts at the COP 28 conference moderated by GW Law alumna Jellie Molino on legal advances in environmentally sustainable public procurement.
Co-hosted by the Middlesex University Dubai, University of Dubai and the University of Cambridge, the Climate Law and Governance Day (CLGD) 2023 global symposium (full program) took place both in-person at Middlesex University Dubai and online during the United Nations Framework Convention on Climate Change (UNFCCC) COP 28 in Dubai, UAE. Co-hosts of the roundtable were UNEP, CMS — International Law Firm and George Washington University Law School.
Roundtable: Exploring Low Carbon and Energy Efficient Procurement as a Tool for Paris Agreement Implementation (Montreal Room) — Zoom Link – December 5, 2023, 14:35 Gulf Standard Time (GST) (UTC+4:00) – 5:35 am Eastern US
The panel addressed the following questions:
How can the government purchasing power of 14% of GDP in high-income countries and 30% of GDP in developing countries accelerate the demand strategy for a more climate-friendly procurement system?
How can a systematic framework be aimed at the integration of low-carbon criteria in all stages of public procurement so as to enable procurement officials to overcome the challenges of setting and reaching net-zero goals?
How can emerging economies leverage their large purchasing power in promoting a more sustainable and inclusive growth through the adoption of sustainable public procurement policies?
Roundtable panelists joined from around the world:
Chairs: Hon Marc Steiner (Judge, Swiss Federal Administrative Court, online) & Adv Munir Hassan (Partner, Head of Energy & Climate Change, CMS)
Moderator: Dr Jellie Molino (Former Expert Consultant, UNEP)
Ms Anne-Claire Howard (Director, Procurement Group, UNOPS)
Mr Mohammed Shoheler Rahman Chowdhury (Director, Central Procurement Technical Unit, Ministry of Planning, Bangladesh, online)
Ms Marieke Weerdesteijn (Programme Manager, Circular and Fair ICT Pact, online)
Mr Johan Rodenhuis (Strategic Sustainability Advisor IT, Ministry of Economic Affairs and Climate Policy, Netherlands, online)
Mr B. Dabeesing (Member, Procurement Policy Office, Ministry of Finance, Economic Planning and Development, Mauritius, online)
Prof Christopher Yukins (Prof, Government Procurement Law Program, GWU Law School, Washington DC, online)
Dr Döne Yalçın (Managing Partner & Member of ESG and Sustainability Leadership, CMS)
In his roundtable presentation, Professor Yukins addressed the U.S. federal government’s initiatives in environmentally sustainable public procurement. Federal government procurement policy can have a direct impact on over 8% of the U.S. GDP, through federal procurement (roughly US$700 million per year) and federal grants (US$1.2 trillion).
The U.S. government has joined the Net Zero Government Initiative, and the Biden administration has advanced the following actions to further that initiative:
Requiring major Federal suppliers to publicly disclose emissions and set reduction targets. This initiative would center on contractor qualification (known as “responsibility” in U.S. procurement.) Under a proposed rule published in November 2022, to be considered qualified (“responsible”), major federal contractors (those with over US$50 million in annual federal obligations) would be required to publicly report their annual corporate-level GHG emissions and set targets to reduce them. Major contractors would also be required to disclose climate risks and vulnerabilities that may affect their future economic stability or their ability to deliver goods and services that are critical to Federal agency missions (see summary table below).
Changing Federal procurement rules to minimize the risk of climate change, including factoring in the social cost of greenhouse gas (SC-GHG) in procurement decisions. This initiative seeks to require agencies to consider lifecycle costs of sustainable alternatives. Under Federal Acquisition Regulation (FAR) Part 7, federal agencies must already consider the life-cycle cost of alternatives in procurement decisions. In 2021, President Biden issued Executive Order 14030, which directed regulators to amend the FAR to “ensure that major Federal agency procurements minimize the risk of climate change, including requiring the social cost of greenhouse gas emissions to be considered in procurement decisions and, where appropriate and feasible, give preference to bids and proposals from suppliers with a lower social cost of greenhouse gas emissions.” The Biden administration says that it “aims to strengthen lifecycle cost approaches to include the SC-GHG—the incremental future economic damages caused by each ton of carbon pollution—can be a valuable tool to guide agencies toward investments that are compatible with the low-carbon economy of the future.” In September 2023, the White House announced that it was directing federal regulators to incorporate SC-GHG estimates into a wide range of federal agency actions, including each agency’s procurement function. In October 2021, regulators had issued a request for comments on minimizing the risk of climate change in federal acquisitions, and a draft proposed rule (FAR Case 2021-016) is under review.
Maximizing the procurement of sustainable products and services. This initiative stresses the use of approved eco-labels to identify sustainable products for acquisition, and calls for purchase of those products whenever practicable. In September 2021, the Biden administration issued a proposed rule to update FAR Part 23 to “focus on current environmental and sustainability matters and to implement a requirement for agencies to procure sustainable products and services to the maximum extent practicable.” Specifically, the proposed rule would call on agencies to purchase the products identified by the U.S. Environmental Protection Agency (EPA) under various eco-labels. Under the proposed revised FAR 23.103, agencies would be required to “procure sustainable products and services . . . to the maximum extent practicable.” Procuring sustainable products and services would be considered practicable unless the agency could not acquire products or services (i) competitively within a reasonable performance schedule; (ii) that meet reasonable performance requirements; or (iii) at a reasonable price.
Establishing the Net-Zero Emissions Procurement Federal Leaders Working Group, including a Buy Clean Task Force, to drive strategy and implementation. This initiative is part of the federal government’s overall strategy for reducing climate change. These federal officials would work within the Biden administration’s broader Federal Sustainability Plan Strategy Mix, which includes procurement as a core pillar of the Biden administration’s overall plan for meeting sustainability goals.
Summary of Requirements Under Proposed Rule Requiring Federal Contractor Disclosure of GHG Emissions (Source)
This was a contribution to a special edition of the University of Nottingham’s Public Procurement Law Review on defense procurement in light of the war in Ukraine. What follows is the abstract, including the British spelling:
Rather than summarising the US national procurement regime for defence—the approach taken by many valuable contributions to this special edition, regarding other nations—this article defers to the existing literature and instead places the US practice of defence procurement law in a broader context, especially in light of Russia’s war against Ukraine. The US experience is that civilian and military purchasing are largely interchangeable, and that hard lessons learned from both quarters, such as in the procurement of supplies in a battle zone and the elimination of trade barriers, could be used to advance the cause of Ukraine and its democratic allies in the current war. The moral imperatives presented by the war in Ukraine are obvious, and this brief piece concludes that legal practitioners in our discipline, even if they are not specifically defence experts, can share a common skillset crucial to preserving democracy and rebuilding Ukraine, despite this terrible war.
This article was first published by Thomson Reuters, trading as Sweet & Maxwell, 5 Canada Square, Canary Wharf, London, E14 5AQ, in the Public Procurement Law Review, 32 Pub. Proc. L. Rev. 445 (2023), and is reproduced by agreement with the publishers. For further details, please see the publishers’ website. The manuscript version of the article is available here on the Social Science Research Network (SSRN).
Gian Luigi Albano of Italy’s centralized purchasing agency, CONSIP, joined Keith McCook (a senior procurement attorney in South Carolina government) and GW Law’s Christopher Yukins on November 10, 2023 to discuss the law-and-economics of framework agreements (which in the U.S. system are known as “indefinite-delivery/indefinite-quantity” contracts).
They spoke at the 10th anniversary meeting of the National Association of State Procurement Officials (NASPO) Law Institutein New Orleans. The Law Institute is a regular gathering of chief procurement officers (CPOs) and state public procurement attorneys from around the United States.
On November 14-15, 2023, GW Law’s Professor Christopher Yukins joined the International Conference on Public Procurement and Innovation in Africa (livestream available), coordinated by Professor Geo Quinot (Stellenbosch University) and held through the National Research Foundation in Pretoria, South Africa. A focus of the conference was South Africa’s pending legislation on public procurement. Chris Yukins spoke on the U.S. government’s use of procurement as an engine for innovation through the Small Business Innovation Research program, which is administered through a policy directive from the U.S. Small Business Administration (SBA). Each year, SBA notes, U.S. federal agencies with “research and development (R&D) budgets that exceed $100 million are required to allocate 3.2% . . . of this extramural R&D budget to fund small businesses through the SBIR program.” The U.S. SBIR program funds on average 4,000 projects for a total of roughly US$4 billion annually. The SBIR program, which has been extensively studied, was an inspiration for the European Union’s “Innovation Partnerships” strategy under the EU Procurement Directives, and for the United Kingdom’s Small Business Research Initiative (SBRI) (see 2017 study; 2022 study).
The Pretoria conference is just one of several collaborations between GW Law and Stellenbosch University. GW Law’s Dean Jessica Tillipman is co-editing a book on anti-corruption with Stellenbosch’s Professor Sope Williams, and Allison Anthony, deputy director of the African Procurement Law Unit at Stellenbosch and senior lecturer at the University of South Africa, has joined GW Law as a visiting scholar and LLM candidate.
Songezo Mabece, an experienced attorney and public servant whose c.v. includes stints at both Stellenbosch University and GW Law School, helped moderate the conference and continues his good work in South Africa; including as a radio broadcaster.
Congress directed that a report prepared for Stevens Institute of Technology’s Acquisition Innovation Research Center (AIRC) by principal investigators David Drabkin and Christopher Yukins be extended to provide training on potential exclusion and debarment of contractors that have violated U.S. labor laws. The training was done through a two-session webinar series coordinated by the Defense Acquisition University (DAU).
As DAU noted in launching the training, the Department of Labor has thousands of records on violations by federal contractors. The purpose of the training was to explain how to access and assess those records when evaluating contractors, including when assessing their present responsibility.
Expert roundtable on accessing and considering labor law violations, including senior officials from the Labor Department, debarment experts and senior contracting personnel.
