Public Procurement International

GWU Law Supports Student Submissions to Law Journals for Publication

For GWU Law students interested in publishing excellent papers, the Law School maintains a special service for students, described below, excerpted from an email from the head of the Law Library, Associate Dean Scott Pagel:

George Washington University Law School, Washington, DC

I am writing to share information about a new service that the Law School will be offering to our students and recent graduates, effective immediately.

In order to promote student scholarship and to subsidize student efforts to be published, the Dean has agreed to permit students to submit a manuscript to up to 25 journals using the Law School’s Scholastica account. This offer also will be extended to alumni/alumnae for a period of six months following their graduation. As those of [the faculty] who use Scholastica know, it charges for each submission. This is where [faculty] assistance is required.

In order for a student to participate in this program, she must have a full-time faculty member as a “sponsor” for the manuscript. The faculty member will be expected to read the manuscript and ascertain whether it is likely to be accepted for publication by a journal. The faculty member also will be expected to meet with the student to discuss which journals are appropriate targets for submission of the manuscript. Please note that students are not limited in the number of manuscripts that they may submit, but they must obtain sponsorship from a full-time faculty member for each manuscript.

[After a full-time faculty member has discussed the manuscript] with the student, [the faculty member should] simply send [Dean Pagel] her name and email address and [he] will take it from there. [He] will add the student to [the] Scholastica list, contact the student, and monitor use of the service.

The full policy is downloadable here:

Scholastica-Policy Download

Students in the GWU Law Government Procurement Program also may want to contact the procurement-focused journals listed on our program page, https://www.law.gwu.edu/government-procurement-law. And as always, Mary Kate Hunter, the lead librarian for the program, is a wonderful resource too.

In Startling Reversal, Brazil Announces It Will Seek to Join WTO Government Procurement Agreement

In a surprising break from decades of protectionism regarding its public procurement markets, Brazil has announced that it will seek to join the World Trade Organization (WTO) Government Procurement Agreement (GPA). Accession to the GPA (see J. Heilman Grier, The WTO Government Procurement Agreement (Djaghe 2020)) could open Brazil’s public procurement markets, which have been estimated to total over US$150 billion annually, to competition from other GPA members; it would also give Brazilian exporters access to the public markets in other GPA members, including the United States. If it overcomes concerns in Brazilian industry and succeeds in acceding (China’s accession has been pending for over a decade), Brazil would be one of the first major low-cost producers to join the GPA, which could cause shifts in public procurement markets worldwide.

George Washington University Law School LLM candidate and Brazilian attorney Ricardo Campello commented:

The Brazilian Minister of Economy, Mr. Paulo Guedes, announced yesterday (January 21, 2020) during the World Economic Forum in Davos that Brazil will formally request to join the GPA as a full member (since 2017, Brazil has had an “observer” status). The announcement was reported in Brazil`s biggest newspaper for corporate matters, called “Valor Econômico” (link to the article in Portuguese). As reported, the request is being prepared and can be submitted soon, maybe even before the end of the Forum. Joining the GPA will help Brazil to incorporate best procurement practices and will also be a full attack against corruption, said Mr. Guedes. When asked about the possible impact to local companies, Mr. Guedes answered that Brazil can no longer have this type of mentality which only contributes to the exploitation of Brazilian consumers and taxpayer funds by local companies. In this regard, it`s mentioned that the fact that Brazil will soon no longer be able to have price preferences in favor of local suppliers against European companies, due to the free-trade agreement signed between Mercosur and the European Union, contributed to the decision to join the GPA. This is the first time Brazil`s government officials have expressed the country`s intention to join the GPA as a full member. As Brazil`s Senate is currently discussing the country`s new procurement system, it would not hurt to consider the GPA’s requirements in such discussions.

Robert Anderson, formerly Senior Counsellor and Team Leader for Government Procurement at the World Trade Organization and now Honorary Professor at the School of Law of the University of Nottingham (UK), commented as follows:

The announcement yesterday by the Brazilian Minister of the Economy, Mr. Paulo Guedes, during the World Economic Forum in Davos, that Brazil will seek to join the WTO Agreement on Government Procurement (GPA) represents a huge step forward for Brazil. Joining the GPA will align Brazil’s procurement system with best practices internationally, provide Brazilian suppliers with unfettered access to huge markets for goods and services in the US, Europe and elsewhere, and send a powerful signal to the global community regarding Brazil’s determination to grapple successfully with past corruption and supplier collusion problems in its procurement system. It will establish Brazil as an important thought and practice leader in this area across Latin America and the developing world. The announcement also shows the continuing vitality of the GPA itself, which was modernized in 2012 and continues to gain new members, year by year. Minister Guedes’ announcement will be enthusiastically welcomed by advocates of good governance and procurement reforms across the globe.

Request Denied by GAO for Documents in Pending Protest Regarding GSA “Electronic Marketplaces” Procurement

On January 15, 2020, Overstock.com, Inc., a competitor in the pending U.S. General Services Administration (GSA) procurement for “electronic marketplaces” reportedly protested the reissued (and revised) solicitation at the U.S. Government Accountability Office. Per GAO’s rules on the public availability of records, 4 Code of Federal Regulations (CFR) Part 81, Professor Yukins submitted a formal request to GAO for electronic versions of the redacted materials filed in the referenced pending bid protest (attached). These records were requested so that information and analysis regarding the subject procurement – a multi-billion dollar procurement to open commercial electronic marketplaces to federal users – can be made available to the public. If these records are not released, key information on this major procurement may be blocked from the public for roughly three months – the 100-day period for a GAO bid protest to be decided.

On January 22, 2020, GAO denied the request, saying that it is estimated that the documents will not be available until the proceedings are concluded, projected to be on or about April 24, 2020, over three months later. In practical terms, this means that the thousands of vendors and customers which need to prepare for the new electronic markets to be opened by GSA’s procurement may need to wait months for information on the ongoing procurement and protest — even though that information (because redacted) is otherwise publicly releasable.

Roger Waldron, Coalition for Government Procurement

Editor’s Note: On January 24, 2020, the Federal News Network published an op-ed by Roger Waldron of the Coalition for Government Procurement which concluded: “. . . there are broad implications for the procurement system associated with the e-Marketplace acquisition, and those implications extend into other areas of importance, like supply chain security, socioeconomic programs, and the protection of proprietary data. Yukins is right. Absent the release of these [GAO protest] records, ‘key information on this major procurement may be blocked from the public for roughly three months – the 100-day period for a GAO bid protest to be decided.’ So too, from the perspective of Coalition members, it highlights that more review and reflection on the acquisition is needed. “

Request for Documents- 20 Jan 2020 Download

GAO Acknowledgement – 21 Jan 2020 Download

GAO Denial of Request – 22 Jan 2020 Download

ABA Committees To Hold Joint Meeting on Developments in International Debarment – February 13, 2020 – Call in

Jessica Tillipman, GWU Law School – Co-chair, ABA SIL Anti-Corruption Committee

On February 13, 2020, at 12:00 noon ET, the American Bar Association (ABA) Section of International Law (SIL) Anti-Corruption Committee will join with the ABA Public Contract Law Section (PCLS) Suspension and Debarment Committee, for an informal lunchtime session on developments in international debarment. The session will be moderated by Assistant Dean Jessica Tillipman, George Washington University Law School, Washington DC.

Christopher Yukins, George Washington University Law School (who co-teaches courses on anti-corruption with Dean Tillipman), will discuss emerging international models for debarment, and the impact that new electronic marketplaces may have on debarment globally. With regard to the U.S. experience, he has drafted a book chapter with John Pachter and Jessica Tillipman, for a forthcoming book on compliance by Cambridge University Press. Professor Yukins has also co-written a piece with Professor Michal Kania (U. Silesia – Katowice), comparing debarment in the United States and the European Union.

Chris Yukins-International Models-Materials Download

Pascal Friton, a partner in the BLOMSTEIN firm, Berlin, will discuss how the European Union’s member states are addressing exclusion and debarment, drawing on a piece he presented at the Thomson Reuters Government Contracts Year in Review in February 2019. He also will be speaking on the afternoon of Tuesday, February 18, 2020 at this year’s Year in Review conference.

Collin Swan, of the World Bank’s Office of Suspension & Debarment, will discuss his office’s debarment survey and the office’s ongoing research into other debarment systems (beyond the United States and the World Bank). See his FCPA Blog post on the survey.

World Bank – Suspension & Debarment Survey – Pilot Results (2019) Download

Additional resources

Grace Sullivan, a third-year student at the George Washington University Law School, recently won first prize in the Public Contract Law Journal annual writing contest for her note (which was also accepted for publication in the Journal). Her note analyzes three case studies of foreign contractors debarred by the U.S. government: Chinese telecommunications giants ZTE and Huawei, and Russian cybersecurity firm Kaspersky. Ms. Sullivan will be presenting on her note at the March 2020 ABA PCLS Federal Procurement Institute in Annapolis, MD.

Dial-in Information:

If you are calling from the US, here are your instructions:

US Dial-in Number (local toll): (515) 606-5440

Access Code: 509353

If you are calling from outside the US, here are your instructions:

International local-toll dial-in numbers: https://www.freeconferencecall.com/wall/sil_anticorruption/

Link to connect to call via computer: join.freeconferencecall.com/sil_anticorruption

Colloquium – Transnational Procurement – Turin, Italy – February 5, 2020

Professor Gabriella Racca hosted a colloquium on transnational procurement at the University of Turin on February 5, 2020. The discussion focused on a new book, Joint Public Procurement and Innovation: Lessons Across Borders (G. Racca & C. Yukins, eds., 2019). Further information is included in the accompanying flyer.

Flyer – Torino Colloquium Download

Gabriella Racca & Chris Yukins-Innovation Book-Presentation Download

U.S. Regulators Plan to Align Debarment Rules for Contracts and Grants

Debarment – the exclusion of a firm or individual from working with a government – allows governments to protect themselves from the reputational and performance risks posed by unqualified firms and individuals. As a March 2019 conference at King’s College, London made clear, governments the world over are reforming their debarment systems, though often in strikingly different ways. The U.S. government is now moving to reform its debarment system, by more closely aligning the rules that govern debarments for grants and contracts. The rules would be revised “to improve consistency between the procurement and non-procurement procedures on suspension and debarment, based on recommendations of the Interagency Suspension and Debarment Committee,” under a pending Federal Acquisition Regulation (FAR) reform case No. 2019-015. Many have long argued for this reform, and a 2017 Public Contract Law Journal article by Robert Meunier and Trevor Nelson described the issue in detail. A report on the pending FAR case is currently due in January 2020, and the U.S. Office of Management and Budget anticipates that a Notice of Proposed Rulemaking (NPRM) will be published in February 2020. We will be tracking this issue closely in a special short seminar that George Washington University Law School offers online, on suspension and debarment.

Public Contracts in Legal Globalisation — Project on Contract Administration Disputes — Presentation on December 13, 2019

Professor Chris Jansen (VU Amsterdam) and Professor Patricia Valcárcel Fernández (University of Vigo), members of the academic consortium Public Contracts in Legal Globalisation, are undertaking a detailed (and quite interesting) study of contract administration law in the European Union, to assess the relationship between competition and contract administration. They presented on this project at the consortium’s meeting at the University of Paris – Nanterre (La Defense campus) on December 13, 2019. They describe their project as follows:

This project seeks to investigate, problematize, and clarify the possible interaction between the competition interest, as well as its regulation, inherent in competitive tendering on the one hand, and the execution of public contracts and concession contracts on the other. The project is based on the assumption that the particular factual and legal context of competitive tendering must be taken into account by the courts when they apply rules of substantive law in order to resolve issues related to the execution of contracts. If this assumption turns out to be correct, it would further mean that the resolving of issues by the courts could, in its turn, have an impact on the competition interest. If that is indeed proven to be the case, the results of the project could be relevant for the further debate on public procurement regulation.

Based on the aforesaid assumptions, this project seeks to answer the following three research questions. (1) In the event that a national court of law must resolve issues regarding the execution of a public contract or a concession contract by applying rules of substantive law (general administrative law; general private law; common law, depending on the legal system concerned), will the court take into account the particular factual and legal context of the competitive tendering procedure? If so: how will the court do this? If not: why not? to indicate those rules that relate to the award of public contracts and concession contracts by means of competitive tendering procedures. Another factual difference relates to the bargaining power of the parties involved in the two situations. In the second situation, it is possible – although not necessarily so – that the two private parties will have had equal bargaining power when they negotiated the content of their contract. In the first situation, however, it is inherent in the competitive tendering procedure that the contracting authority will have had the power to dominate the content of the subsequent contract.(2) To what extent is it possible to problematize and/or unify the various approaches that are found in the answers to question (1)? (3) Based on the aforesaid analysis, to what extent is it possible and necessary to give recommendations to national courts, legislators and perhaps even the supranational legislators (e.g. the European Union) as regards the subject matter?

As the project description suggests, this study relates directly to what may the next wave of reform in procurement in the European Union — a critical reassessment of public contract administration law (and forums), which is also a focus of the upcoming March 16, 2020 symposium at King’s College, London.

The full project description is included below.

Research Project Proposal Amsterdam-Vigo Download

Procurement Classes at University of Paris – Nanterre

On December 9-11, Chris Yukins taught classes with Professor Laurence Folliott-Lalliot at the University of Paris – Nanterre, at the university’s classrooms in La Defense.

Materials

Part I – US Procurement Download

Part II-Anti-Corruption Download

Mock Auction-Solicitation (Exercise)Download

Amazon Web Services (AWS) Complaint in JEDI Protest

Board of Contract Appeals Bar Association (BCABA) Conference at GWU Law — on Ethics in Practice

*Dismas (Dis) Locaria (Venable), Danica (Dani) Irvine (U.S. DoD), Stuart Bender (USDA) and Terry Elling (Holland & Knight)*

The Board of Contract Appeals Bar Association (BCABA) and the George Washington University Law School were pleased to host the BCABA’s annual Policy Colloquium. This year’s program focused on Ethics and Professionalism in Government Contracts Practice. The speakers and panelists included senior government and private practitioners who shared their knowledge and experiences on a variety of government ethics regulatory issues and best practices in the counseling and litigation settings. Holland & Knight’s Terry Elling was the program moderator.

Former congressman Tom Davis was the keynote speaker, and he spoke warmly of the bar’s role in ensuring integrity in our system.
Stuart Bender, Director of the Office of Ethics at the U.S. Department of Agriculture (USDA) presented on legal and government ethics issues, and discussed the USDA Ethics App, which has been lauded for using ethics “games” to encourage learning.
Danica (Dani) Irvine, of the Defense Department’s Standards of Conduct Office, joined other panelists in discussing compliance challenges, including the use of screening questionnaires such as DD 2945 to screen for possible conflicts of interest in post-government employment.

The program was held at the Faculty Conference Center, George Washington University Law School on Tuesday, December 3, 2019.

BCABA-GWU Law Program Materials Download

Principles of Public Contracts in Europe – Conference at University Paris Est Créteil

Conference Program Download

On December 12, 2019 the University Paris Est Créteil hosts a conference on principles of public contracts in Europe, coordinated by Professor Stéphane de La Rosa, University Professor and Director of the Research Team MIL (Markets, Institutions and Liberties).

Panel III

Martin Raz – Presentation Download

Martin Raz – Havel & Partners – Czech Republic

Panel IV

Steven Van Garsse, Professeur à l’Université de Anvers (BE), Professor of Public Law – University of Anvers/Hasselt, on Principles of efficiency and effectiveness

Romélien Colavitti, Senior Lecturer in Public Law – University of Valenciennes, on The principles governing alternate modes of dispute resolution

Carol Cravero – Presentation Download

Carole Cravero, PhD student University of Turin and University of Paris-West Nanterre, on The Principles of Corporate Social Responsibility and Public Contracts

Vincent Bouhier, Senior Lecturer and Dean – Evry-Paris Saclay University, The Principle of Reciprocity

Vincent Bouhier – Presentation Download

Daniel Schoeni-Full Presentation Download

Lt Col Daniel Schoeni, Judge Advocate, U.S. Air Force; PhD Candidate, University of Nottingham, Is the practice of negotiation in public contracts a common principle?

Christopher Yukins, Lynn David Research Professor of Government Procurement Law, George Washington University Law School; moderator