ABA Bid Protest Committee Meeting – Agency Bid Protests

Tuesday, March 19, 2024 | 12:00 pm – 1:30 pm ET

Venue: Miles & Stockbridge, P.C., 1201 Pennsylvania Avenue, N.W., 9th Floor, Washington, DC 20004

This is a hybrid in-person/remote event.  Register here for In-Person or Zoom Attendance

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

US-European Defence Cooperation: Imperatives in a Time of War – by Christopher R. Yukins & Daniel E. Schoeni

Photo credit: Cogitato

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).

NASPO Law Institute – Framework Agreements – New Orleans

Gian Luigi Albano

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 Institute in New Orleans. The Law Institute is a regular gathering of chief procurement officers (CPOs) and state public procurement attorneys from around the United States.

Program Slides

David Drabkin and Christopher Yukins present at Swedish Public Procurement Conference

David Drabkin (Procurement Round Table) and Christopher Yukins (George Washington University Law School) discuss two reports done for the Acquisition Innovation Research Center (AIRC), on U.S Defense Department bid protests (bid challenges) and mandatory debarment (exclusion). This presentation was prepared for the annual Swedish public procurement conference (“Upphandlingskonferensen“) in Stockholm, May 4-5, 2023, hosted by Prof Andrea Sundstrand of Stockholm University.

NASPO Study of State Procurement in the Pandemic – Key Lessons Learned

In a groundbreaking academic study coordinated by the National Association of State Procurement Officials (NASPO), private and public supply chain professors from across the United States conducted a nationwide survey of states’ responses to the pandemic. The study was based on over 100 hours of interviews conducted by the academic research team (Professors Robert Handfield (North Carolina State University), Zhaohui Wu (Oregon State University), Andrea Patrucco (Florida International University), Christopher Yukins (George Washington University) and Thomas Kull (Arizona State University)) with many states’ procurement staff, suppliers, and other state officials. Key takeaways from the study:

Assessing state procurement systems through a maturity model. Different states responded very differently to the pandemic, based in part on their organizational structures and preparations for the disaster. To help states better prepare, the researchers developed a “maturity model” to assess state procurement systems, in preparation for future catastrophes.

Courage and professionalism in the face of catastrophe. The researchers’ interviews with state procurement officials and suppliers “corroborate observations made in much of the disaster science research: disasters often bring out the best in us, and people rise to the occasion.” The study noted “how private citizens collaborated with entrepreneurial state employees to identify innovative and little-known PPE suppliers and often established innovative solutions to seemingly hopeless situations where PPE could not be found. Purchasing managers, staff members, and CPOs [Chief Procurement Officers] emerged as heroes. Our interviews revealed the pride and renewed sense of professional identity . . . . We observed a growing sense of camaraderie as people faced a common crisis.”

Centralization of the state procurement function was a key factor in success. The study’s results suggested “that increased centralized governance of state procurement led to a more effective response in tackling large-scale supply chain disruptions.” Centralized procurement “enabled increased coordination, improved leveraging of the volume of the state’s purchasing power, and provided for more efficient application of contracting expertise to a difficult market situation.” A centralized approach, the study found “also led to better coordination among disaster relief entities, PPE suppliers and hospitals, counties, and agencies requiring PPE to operate.”

Constitutional issues in federal-state confrontations over critical supplies. In principle, the federal government should have helped better coordinate states’ responses to the pandemic. In practice, however, during the early stages of the pandemic the federal government was repeatedly accused of abusing its powers under the Defense Production Act to seize and redirect emergency supplies that had been purchased by individual states — although, under the U.S. federalist system of government, the states bear first responsibility for the health and welfare of their citizens, constitutionally, practically, and politically. The study argued that “[s]erious consideration should be given to whether the Defense Production Act should be amended to recognize the deference owed by the federal government to the states under the Constitution, much as many other federal laws (such as those governing federal grants, use of National Guard troops, etc.) recognize and defer to the sovereign authority of the states.”