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.
Procurement Classes at University of Paris – Nanterre
Board of Contract Appeals Bar Association (BCABA) Conference at GWU Law — on Ethics in Practice
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.
Principles of Public Contracts in Europe – Conference at University Paris Est Créteil
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 – 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
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
Tbilisi, Georgia: Impact of Corruption in Public Contracts – an International Dialogue and Exchange of Experiences
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).
Reference Materials
Swedish Public Procurement Conference – Upphandlingskonferensen
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.
U.S. Government To Award Billions Of Dollars In Contracts To Open Electronic Marketplaces To Government Customers—Though Serious Questions Remain
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.
Poland’s Public Procurement Law Association — conference on grounds for exclusion in Europe and the United States
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.
After Long Delay, U.S. Defense Department Issues Final Rule Limiting Use of Lowest Price Technically Acceptable (LPTA) Awards
The U.S. Defense Department will on September 26, 2019 publish a long-awaited final rule to implement Congress’ curbs on low-price awards. Unlike European governments, since World War II the U.S. government has come to rely heavily on multilateral competitive negotiations which trade off price and quality to ensure best value. Recent years, however, saw a resurgence of “lowest price technically acceptable” (LPTA) procurement – an award to the vendor that offers the cheapest good or service that is technically acceptable. The final rule, which reflects Congress’ concerns that the low-price method is used too often and inappropriately, may slow the use of LPTA awards.
Many have argued that the LPTA procurement method is a throwback to a more primitive form of procurement based on low price. Contracting officials, however, have embraced this return to low-price procurement. Critics have suggested that this is because low-price awards are easier to implement and explain, they reduce the nominal prices paid by the government, and awards based on low price allow contracting officials to avoid the often sticky questions raised by technical and past performance evaluations. Because price is simple and technical issues are often quite difficult for contracting officials to master, critics of the LPTA method have argued that focusing on low price reduces administrative costs and risks for contracting officials, even if the award does not result in the best value for users – a classic “agency” problem in procurement.
After long debate and numerous studies noting industry’s opposition to low-priced awards, Congress passed a series of laws intended to curb the use of the LPTA method in federal procurement. Despite early Pentagon guidance urging caution in the use of the LPTA method, Defense Department regulators took long (several years, though Congress had called for swift action) to prepare and publish a final rule implementing those statutory restrictions. Operational guidance for Defense Department contracting officials is being published as well, and civilian agency requirements will be addressed separately under a government-wide rule currently under review.
The final rule reflects a restrictive implementation of Congress’ curbs on low-price awards; in fact, the new rule is in many ways merely a “copy-and-paste” of the statutory requirements. Regulators repeatedly rejected suggestions to clarify, for example, that low-price awards should be limited to non-complex acquisitions. Regulators argued that where Congress did not impose a specific bar on low-price awards, further limitations should not appear in the rule – a markedly narrow approach, given the broad discretion allowed U.S. regulators when implementing legislation.
Despite regulators’ cautious approach, the final rule does impose important limitations on the use of the LPTA method:
- Contracting officials will have to document (but not necessarily publish) why they chose to use the LPTA method.
- Certain goods (such as personal protective equipment to be used in combat) are not to be purchased using the LPTA method.
- The LPTA method is to be avoided in contracts
and orders unless:
- Requirements can be described “clearly and comprehensively”
- Little value will be gained from a proposal that exceeds minimum technical requirements
- The technical requirements require little subjective assessment
- Review of the technical proposals is probably not valuable
- A different procurement method is unlikely to spur innovation
- The goods to be purchased are expendable or non-technical
- The contract file explains why the lowest price will reflect full life-cycle costs
Regulators’ comments to the final rule acknowledged that the government does not hold data on how often the LPTA method is actually used in practice. If, in response to this final rule, industry continues to press Congress for further limitations on low-price awards, future reforms may focus on the need for data on LPTA awards, and on greater transparency in contracting officials’ decisions to make awards based on low price.
Editor’s note: This post was updated on September 26, 2019 to include the two charts from GAO Report GAO-19-691, which was published after the final DFARS rule was released.
ABA Public Contract Law Section – International Procurement Committee – Presentation on International Trade Agreements – October 10, 2019 – Noon to 1:30 pm
Join a special presentation on the United States’ international trade agreements in procurement. Chris Yukins and Allen Green will present on their chapter in The Contractor’s Guide to International Procurement (American Bar Association 2018) (Erin Loraine Felix & Marques Peterson, eds.). They will give an overview of international trade agreements, and discuss recent “Buy American” developments in the Trump administration. The program will be held at the Dentons law firm, 1900 K Street NW, from 12-1:30 pm. Lunch will be served.
Call-in information: +1-877-211-3621 Passcode: 788 499 1844
International Trade Agreements and U.S. Procurement Law
Chapter by Christopher R. Yukins & Allen B. Green, in The Contractor’s Guide to International Procurement (American Bar Association 2018) (Erin Loraine Felix & Marques Peterson, eds.)
Available at: https://ssrn.com/abstract=3443244
Some of the most difficult issues in U.S. procurement law stem from the nation’s several centuries of accumulated protectionist measures, and from a patchwork of trade agreements meant to contain that protectionism. These conflicting measures reflect a push-and-pull in U.S. procurement policy, between those who favor closed procurement markets and those who favor open competition; the compromises reached between the two camps have created a Byzantine set of rules and requirements. At the same time, though, this area of law holds a special promise for the future of procurement, for cross-border agreements currently offer the readiest means of erasing anti-competitive differences between national rules, by bringing many nations to a common standard of international best practice. To make sense of this complex area, this chapter proceeds in three parts. Part II reviews the major pieces of protectionist legislation passed by Congress, focusing first on the Buy American Act of 1933; this discussion also references some of the most important implementing regulations. Part III reviews the most important U.S. trade agreements which have limited the force of that protectionist legislation, including the World Trade Organization’s Agreement on Government Procurement (GPA). Because barriers to procurement can also arise from structural factors — “non-tariff barriers to trade” which, in practice, may protect domestic vendors — this part also explains how the trade agreements mitigate those non-tariff barriers. Finally, Part IV concludes by offering some practical suggestions for those working in this field, and suggests a possible road ahead for cooperation in international procurement markets.
Yukins, Christopher R. and Green, Allen, International Trade Agreements and U.S. Procurement Law (2018). Chapter 9 to The Contractor’s Guide to International Procurement (American Bar Association 2018) (Erin Loraine Felix & Marques Peterson, eds.); GWU Law School Public Law Research Paper No. 2019-55; GWU Legal Studies Research Paper No. 2019-55. Available at SSRN: https://ssrn.com/abstract=3443244