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.
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.
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.
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.
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.
The program was held at the Faculty Conference Center, George Washington University Law School on Tuesday, December 3, 2019.
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).
Martin Raz – Havel & Partners – Czech Republic
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
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
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
On October 28, 2019, a training session was held in Tbilisi, Georgia on anti-corruption efforts. The session was convened by the European Union’s “twinning” project, “Strengthening Public Procurement Practices in Georgia,” and moderated by Ms. Dana Mitae, Legal Advisor and Consultant for the Department for Consulting, e-Procurement and International Affairs, Federal Procurement Agency of Austria, Austria. The session built on Georgia’s Association Agreement with the European Union, which calls in Chapter 8 for Georgia to incorporate important elements of the European Union’s procurement directives into Georgia’s own laws and institutions. The session was opened by Mr. Levan Razmadze – Chairman of State Procurement Agency of Georgia, and outside experts included Prof. Christopher Yukins, George Washington University (USA), Mr. Mihai Dragutescu, President of the Senate for Administrative Cases (Romania), and Ms. Maja Kuhar, President of the State Commission for Supervision of Public Procurement Procedures, Zagreb (Croatia).
On October 23-24, 2019, Professor Andrea Sundstrand (U. Stockholm) hosted the annual public procurement conference in Stockholm. Michael Bowsher QC (King’s College, London/Monckton Chambers), Marta Andhov (U. Copenhagen) and Chris Yukins (presentation below) were keynote speakers.
Proposals to the U.S. General Services Administration are due soon in a $6 billion procurement under which multiple no-cost contracts will be awarded to vendors that will open electronic marketplaces to federal users making micro-purchases (generally up to $10,000). Although federal purchase card holders have long been able to make micro-purchases with few regulatory constraints regarding competition, transparency or socioeconomic requirements, this new GSA initiative appears likely to normalize and expand those purchases—and so may revolutionize small purchases in the federal market. This article assesses some of the key concerns — including a lack of competition and transparency, cybersecurity threats, most-favored-customer pricing, and open issues regarding bid protests — that still surround this important initiative. 61 Government Contractor ¶ 303 (Oct. 16, 2019). Available at https://ssrn.com/abstract=3471405 , and below.
On September 30, 2019, at the University of Warsaw, the Public Procurement Law Association of Poland held a conference (program below) on exclusion of contractors (called “debarment” in the United States and elsewhere), which looked at rules and practices in the European Union (EU), the European Free Trade Association (EFTA) and the United States. The conference featured a report (below) summarizing procedures used in 31 EU and EFTA nations, which was sponsored by the Association. The presentation by Professor Christopher Yukins is also set forth below.
