The Government Procurement Review, one of the leading compilations of procurement laws from around the world, is now available in its 8th edition. Congratulations to the editors, Jonathan Davey and Amy Gatenby of the law firm of Addleshaw Goddard.
Amy Gatenby
The volume, published annually, covers procurement law from fourteen countries and the European Union, including reviews by leading procurement practitioners from Australia, Austria, Belgium, Brazil, Canada, the Dominican Republic, Germany, Greece, Italy, Mexico, Russia, Switzerland, the United Kingdom and the United States.
For further information on foreign and international sources on public procurement law, please see the research guide prepared by GW Law’s government procurement research librarian, Mary Kate Hunter.
The Senate Armed Services Committee report to accompany the pending National Defense Authorization Act (NDAA) for Fiscal Year 2021, Senate Report No. 116-236, calls for a Defense Department report on agency-level bid protests. This follows on the Administrative Conference of the United States project (supporting materials on this website) to study agency-level bid protests. Both the House (H.R. 6395) and Senate (S. 4049) versions of the pending NDAA have passed, and the legislation will now likely proceed to conference to reconcile the two bills.
The Senate report states:
Repeal of pilot program on payment of costs for denied Government Accountability Office bid protests (sec. 846)
The committee recommends a provision that would repealsection 827 of the National Defense Authorization Act for Fiscal Year 2018 (Public Law 115-91), which required the Secretary of Defense to carry out a pilot program to determine the effectiveness of requiring contractors to reimburse the Department of Defense (DOD) for costs incurred in processing covered protests. The committee finds that the pilot program is unlikely to result in improvements to the bid protest process given the small number of bid protests captured by the pilot criteria and lack of cost data.
The committee continues to support efforts to improve the handling of bid protests. In support of such efforts, the committee directs the Secretary of Defense to undertake a study of the processes for agency-level bid protests. The study should evaluate the following for agency-level bid protests:prevalence, timeliness, outcomes, availability, and reliability of data on protest activities; consistency of protest processes among the military services; and any other challenges tha affect the expediency of such protest processes. In doing so, the study should review existing law, the Federal Acquisition Regulation, and agency policies and procedures and solicit input from across the DOD and industry stakeholders. The study should also include recommendations to improve the expediency, timeliness, transparency, and consistency of agency-level bid protests.
Not later than September 1, 2021, the Secretary of Defense shall provide the congressional defense committees with a report detailing the results and recommendations of the study, together with such comments as the Secretary determines appropriate.
In this piece in the Government Contractor, Christopher Yukins and Kristen Ittig reviewed key issues under Section 3610 of the CARES Act, a provision which allows agencies to modify existing contracts, under appropriate circumstances, to reimburse contractors for leave paid to employees during the COVID-19 pandemic. 62 Government Contractor para. 156 (June 10, 2020).
The U.S. General Services Administration (GSA) on June 26, 2020 announced the award of three contracts which will allow government users to make billions of dollars in purchases directly from “electronic marketplaces” online. The contracts were awarded to Amazon Business, Overstock.com and Fisher Scientific. This “commercial platforms” initiative, detailed in Government Contractor pieces available here and here, could radically reshape public procurement in goods and services, as government users will be able to make “micro-purchases” (typically up to US$10,000) directly from these commercial platforms.
Join a webinar to discuss these developments on Tuesday, June 30, 2020 at 12 noon Eastern. Info. Registration.
This is a three-year pilot (or “proof-of-concept“) initiative. The estimated total value of these contracts is $6 billion annually, and GSA announced that it expects these online platforms to be available in 30 days.
Now that GSA has made awards on the pending solicitation, contractors may choose to join the online marketplaces which could regularize access to approximately 4.5 million federal personnel.
While the cap on micro-purchases is normally $10,000, that cap has increased to $20,000 in the pandemic, and GSA and the Office of Management & Budget (OMB) (within the White House) have urged Congress to increase the limit to $25,000 for purchases through GSA’s approved portals. Although as noted GSA estimates that $6 billion in sales could go to these new electronic marketplaces, micro-purchases across the federal government total several times that amount.
GSA and OMB have urged Congress to increase the micro-purchase threshold to $25,000 for purchases through GSA-approved portals
While the transactions through these electronic marketplaces will be directly between vendors and federal users, GSA will earn a .75% referral fee on every sale, or $45 million on a conservative estimate of $6 billion in sales every year. This fee matches the “industrial funding fee” charged by GSA for sales through the Multiple Award Schedules contracts, though the electronic marketplaces apparently will entail little workload and few legal obligations for GSA. This fee to a centralized purchasing agency may prove attractive to other centralized purchasing agencies, both in the United States and abroad, when those other agencies consider entering into similar arrangements with Amazon or other online marketplaces.
Micro-purchases by users on the commercial platforms will carry almost no regulatory requirements.
Unlike traditional federal contracts, the micro-purchases on the commercial platforms under Federal Acquisition Regulation (FAR) Subpart 13.2 will carry almost no regulatory requirements. This means that buyers and vendors working through the commercial platforms will be able to avoid the competition and transparency normally required for federal procurements, and will not need to meet socioeconomic requirements such as the Buy American Act.
The initiative has raised questions regarding cybersecurity. The U.S. government is imposing tighter cybersecurity requirements, such as the Cybersecurity Maturity Model Certification (CMMC) being implemented at the U.S. Department of Defense. While the awarded contracts should exclude certain products from vendors such as Kaspersky Labs and Huawei, other security issues may arise as security standards change.
Department of Homeland Security – Best Practices Guide on “Combating Trafficking in Counterfeit and Pirated Goods”
Questions have also arisen regarding counterfeit goods on the commercial platforms. GSA has announced that it intends to follow best practices guidance regarding counterfeit goods published by the U.S. Department of Homeland Security.
Because of these and other risks, the new initiative may result in a spike in debarments. Unlike traditional federal contracts, vendors joining the online marketplaces and selling directly to federal users will not go through the same careful vetting for price, quality and qualification (responsibility). Individual government officials using these marketplaces may not have the requisite skills to assess quality and past performance. As a result, the government may seek to exclude vendors, through debarment or otherwise, if they pose serious corruption, reputational or performance risks.
The next month could prove a pivotal time for this initiative. Contractors will need to assess whether and how their federal market strategies may shift if federal users turn to this new sales channel. For government agencies it may also be a time of assessment, as agencies weigh whether federal customers—specifically, non-procurement personnel—should be specially trained to take on more authority for direct micro-purchases.
GWU Law will be hosting a free hour-long webinar on GSA’s “commercial platforms” initiative on Tuesday, June 30, 2020, at 9:00 Pacific, 12 noon Eastern and 18:00 CET.
On Tuesday, June 30, 2020, at noon Eastern time, join a free hour-long webinar sponsored by George Washington University Law School’s Government Procurement Program to discuss GSA’s recent contract awards in the “commercial platforms” initiative — contracts estimated to be worth $6 billion annually, which were awarded to Amazon Business and two other online marketplaces.
Moderator Christopher Yukins (GWU) will introduce GSA’s “commercial platforms” initiative, and discuss potential challenges in implementation.
Robert Handfield, the Bank of America University Distinguished Professor of Supply Chain Management at North Carolina State University, and Director of the Supply Chain Resource Cooperative, will discuss how the government’s use of commercial platforms could improve the resilience of public supply chains in times of crisis.
Thomas Kull, professor of supply chain management at the W. P. Carey School of Business at Arizona State University, will review the training that will be needed under this initiative, as non-procurement professionals take on substantial purchasing responsibilities through the new platforms.
Andrea Patrucco, professor of project and supply chain management at Penn State Beaver, will discuss the potential impact of this initiative in state and local governments, and internationally.
Roger Waldron, Coalition for Government Procurement
Special guest Roger Waldron, president of the Coalition for Government Procurement (a leading industry association of commercial contractors who sell regularly to the federal government), will join the panel to discuss industry’s perspectives on GSA’s initiative. The Coalition has raised a number of concerns regarding the new commercial platforms initiative, including concerns regarding agency accountability, pricing, supply chain security, counterfeit goods, and market concentration.
The panelists have co-authored a background article for the seminar in the Government Contractor; the piece was published in the days before GSA announced the contract awards. In the article, Professors Christopher Yukins (George Washington University), Robert Handfield (North Carolina State University), Thomas Kull (Arizona State University) and Andrea Patrucco (Penn State University Beaver) discuss key themes for the upcoming webinar: challenges in what is, in essence, a new method of procurement; improvements that the initiative will bring to supply chain resilience; training that will be needed for federal purchasers; and, the possible impacts on procurement markets, both in the United States and abroad.
GSA’s commercial platforms initiative, by opening online marketplaces to federal users’ micro-purchases, could have an enormous impact on broad portions of the federal marketplace. If the challenges can be met—if GSA’s commercial platforms initiative succeeds – it may serve as a model for other public purchasers across the United States, and across the globe.
On June 5, 2020, Professors Michal Kania (University of Silesia in Katowice, Poland, and a former Fulbright Scholar at GWU Law) and Christopher Yukins joined to discuss lessons learned in procurement from the COVID-19 pandemic.
Join GW Law for another free hourlong webinar, on President Donald Trump’s abrupt removal of four inspectors general and his announcement that a fifth will be dismissed shortly. In the last few months Trump has:
Fired Michael Atkinson, inspector general for the U.S. intelligence community, who passed forward to Congress the whistleblower complaint regarding Ukraine that helped lead to Trump’s impeachment by the House of Representatives.
Removed Glenn Fine, acting inspector general of the Department of Defense, who was slated to chair the federal panel Congress created to oversee the Trump administration’s management of the $2 trillion COVID-19 stimulus package.
OustedChristi Grimm as head of the Office of the Inspector General for the Department of Health and Human Services (HHS), after she published a report critical of the Trump administration’s preparations for the COVID-19 pandemic.
Notified Congress on Friday, May 15, 2020 that Steve Linick, Inspector General of the State Department, will be fired effective June 15, 2020 (after the statutory 30-day notice period), after Linick reportedly launched an inquiry into Secretary of State Mike Pompeo, according to a statement issued by the chairman of the House Committee on Foreign Affairs, Rep. Eliot Engel.
On the same day, removedMitch Behm, the acting Inspector General at the Department of Transportation, nominated Justice Department attorney Eric Soskin to be the permanent Inspector General, and designated Howard “Skip” Elliott as the Department’s Acting Inspector General. House Democrats had earlier requested an investigation into alleged favoritism shown by DOT in its dealings with the husband of Secretary of Transportation Elaine Chao, Senate Majority Leader Mitch McConnell, who is seeking reelection. When acting inspector general Mitch Behm was replaced, Democrats voiced concern that his removal was prompted by the requested investigation involving Secretary Chao.
An expert panel will discuss these actions against the inspectors general, which many have criticized as a collapse of the rule of law in Washington, opening the door to corruption in this and future administrations.
The panel will be moderated by Christopher Yukins, who teaches on anti-corruption in the Government Procurement Program at The George Washington University Law School, joined by:
Lisa Rein
Lisa Rein of the Washington Post will discuss President Trump’s recent actions against inspectors general across the federal government.
Jessica Tillipman teaches anti-corruption and government ethics law at The George Washington University Law School. She will discuss the role of inspectors general in the U.S. government under the Inspector General Act of 1978, and the balance that the Act draws between the power of the President and the independence of the inspectors general.
Clark Ervin
Clark Ervin, a partner at the law firm of Squire Patton Boggs who served as inspector general at three federal agencies during the administration of President George W. Bush, will discuss the role and independence of inspectors general historically, from the perspective of a former inspector general.
Noah Bookbinder
Noah Bookbinder is Executive Director of the Citizens for Responsibility and Ethics in Washington (CREW), and previously served as an attorney in the Justice Department’s Public Integrity Section. He will discuss the pattern of Trump administration moves against inspectors general, the implications for potential corruption, and possible pathways to reform.
The webinar “Trump’s Attacks on the Inspectors General” had over 200 registrants from five continents
The European Union has launched important initiatives in response to the COVID-19 pandemic, in joint procurement and funding innovation to drive the recovery. In the United States, governments’ initial response was marred by fierce competition between federal and state governments for critical medical supplies. But U.S. governments have a long tradition of joint procurement (called “cooperative purchasing”) among governments, and in funding innovation through various initiatives including the Small Business Innovation Research (SBIR) program. International organizations, including the United Nations, have also played an important part in coordinating international relief efforts in procurement.
Registrants were from over thirty countries across five continents
Panelists
Lucian Cernat
Lucian Cernat, Chief Trade Economist, European Commission – welcoming remarks.
Bertrand Wert
Bertrand Wert, PhD, Innovation Maker for the European Innovation Council, Accelerator, in the Business Acceleration Services team, where he has been in charge since 2015 of supporting innovative SMEs that are members of the Accelerator to gain access to public and private procurers of innovation. The EIC Accelerator programme supports the most innovative European SMEs, via grants and equity, to commercialise their innovative solutions and to look for investors. Bertrand worked from 2009 to 2015 for Directorate General GROW of the European Commission, in the team developing the “Innovation Union” strategy. Meanwhile, piloting demand-driven policy interventions, he managed several public procurement networks or “buyers’ groups” of innovation (Pre-Commercial Procurement & Public Procurement of Innovation).
Jekaterina Novikova
Jekaterina Novikova is Innovation Policy Coordinator at the European Commission, Directorate General for Research and Innovation in the newly created European Innovation Council Task Force. Her areas of responsibility include innovation procurement and the connection of innovation ecosystems under the Horizon Europe program. An EU official since 2005, she spent five years in management positions implementing FP-7 and Horizon 2020 research projects. As an EU fellow, she spent the academic year 2018-2019 in the US, at the University of California, Berkeley where she conducted research on how the US government, universities and industry facilitate the transition of research results to market. Jekaterina is a Certified Chartered Accountant and holds an MA in European Affairs from Lund University, Sweden.
Ivo Locatelli
Ivo Locatelli, Senior Expert–Team Leader in innovation procurement at the European Commission (DG GROW (Internal Market, Industry, Entrepreneurship and SMEs)). Ivo has written on innovative procurement in the European Union, and will draw on his assessment of Europe’s experience to discuss next steps in joint procurement among the member states.
Stephan Corvers
Stephan Corvers (s.corvers@corvers.com), managing director of Corvers Procurement Services (Netherlands), a private company which has been operating in the field of European procurement since 2000. Corvers has been involved in a wide range of procurement projects, relating to new markets, new products or services, new distribution channels, and new technology. Corvers is a contractor for the EAFIP-initiative of the European Commission.
Discussants
Benedetta Audia
Benedetta Audia, United Nations Office for Project Services (UNOPS) as Corporate Legal Advisor, where she heads the commercial and institutional law practice and has played a lead role in UNOPS’ response to the COVID-19 pandemic. She is an adjunct professor at George Washington University Law School, a Visiting Professor of Public International Law at LUISS Guido Carli University. She holds a Juris Doctor degree in Public International Law and two Masters Degrees (in Corporate Law and Legal Advanced World Studies).
Justin Kaufman
Justin Kaufman, General Counsel, NASPO ValuePoint, leading U.S. publicly led “cooperative purchasing” vehicle, coordinated through the National Association of State Procurement Officers (NASPO) and used by all 50 states and hundreds of local governments across the United States. Justin has worked for many years in cooperative purchasing in the United States, and was a contributing author to Joint Public Procurement and Innovation: Lessons Across Borders (G. Racca & C. Yukins, eds., 2019).
Thomas Hendrix
Thomas Hendrix, Managing Partner, Decisive Point, a venture advisory and investment firm focused on advanced technology. Tommy works regularly with emerging companies in the SBIR program, building innovative solutions for government. Tommy served in the US Army for nearly 10 years as a Ranger, Green Beret, and Commander in a counter-terrorism response force. He holds an MBA from Columbia Business School and a BS in Law and Legal Systems from the United States Military Academy at West Point, and is a candidate for a Master of Studies in Law at George Washington University. Prior research he has done on improving innovation in government-funded research and development is here.
Moderators
Gabriella Racca
Professors Gabriella Racca (University of Turin) and Christopher Yukins (George Washington University
A special note to the international procurement community — the World Bank needs your help in its worldwide survey of emergency procurement practices for the COVID-19 pandemic, available here
Join another outstanding 60-minute webinar with the National Bar Association and George Washington University Law School’s Government Procurement Program, to discuss contractors’ road to recovery – the challenges and opportunities facing government contractors as the country emerges from the COVID-19 pandemic
Michael Bennett, Evans & Chambers Technology, LLC; Chair, DC Board of Elections
Michelle Coleman, Counsel, Crowell & Moring
Dominique Casimir
Danielle Conway, Dean, Penn State Dickinson Law
Dominique Casimir, Partner, Blank Rome LLP
Liza Craig, Counsel, Reed Smith
Judge Jeri Somers
Kendra Perkins Norwood, Wiley. For an earlier webinar on Section 3610 reimbursement in which Kendra Perkins Norwood and other attorneys from the government and the private sector participated, click here.
Judge Jeri Somers, Chair, US Civilian Board of Contract Appeals
Moderators: National Bar Association President Alfreda Robinson (GW Law School) & Christopher Yukins (GW Law School)
On April 17, 2020, the U.S. Office of Management and Budget, part of the White House, issued guidance on how agencies should implement contractor reimbursement for employees granted leave to mitigate the COVID-19 pandemic. This is a major milestone in COVID-19 procurement developments, and a detailed analysis is available here.
