Transcript Procurement Integrity – Emerging Trends

U.S.
Procurement
Law and
Practice
Professor Christopher Yukins
The George Washington University Law School
London
January 23, 2009
Introduction
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Professor Christopher Yukins is a former
Justice Department lawyer, with many years of
experience in U.S. public procurement
He serves as an adviser to the U.S. delegation
to the UNCITRAL working group on reform
of the UNCITRAL Model Procurement Law
He is co-director of the Government
Procurement Law Program at The George
Washington University Law School, in the
leading government procurement law program
in the United States
He is also of counsel to the firm of Arnold &
Porter LLP
2
Procurement Law Academic Centers
Birmingham
Nottingham.
Bochum
Paris
Washington,
D.C.
Buenos Aires
Montpelier
Beijing
3
Other Professors in Program
Ralph Nash (emeritus)
Fred Lees
(emeritus)
John Cibinic (d. 2005)
Joshua Schwartz
4
Steve Schooner’s Desiderata
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Transparency
Integrity
Competition
Uniformity
Risk Avoidance
Wealth Distribution
Best value
Efficiency (administrative)
Customer Satisfaction
5
Historical Progression:
U.S. Procurement
Sealed
Bids
Negotiated
Task Order
Procurements Contracting
(Competitive (Frameworks)
Dialogue)
6
7
Fewer Acquisition Workers –
Expanding Major Actions
140
120
100
Workforce
Contract Actions
Acts > $25k
Acts < $25k
80
60
40
20
0
1997
2001
8
Procurement
UN Convention Against
Corruption (Art. 9)
UNCITRAL Model Procurement
Law
Public Information
Yes
Advance award criteria and
publication
Yes
Objective and predetermined
criteria for award
Yes
Bid protest and appeal
Maybe
Measures to control procurement No
personnel – e.g., rules and codes
Transparency, including in
budgeting and accounting
Yes
Quarterly
Conferences
Colloquia
Public Contract Law Journal
www..pclj.org
Procurement
Lawyer
g
ABA
Public Contract
Law Section
Textbooks
GW Law
BNA Federal Contracts Reporter
Lexis-Nexis
Pubklaw.com
Other
Institutions
Thomson
Reuters West
World Bank
Judge Advocate
General’s School
Federal
Government
General Services
Administration
House/Senate Armed
Services Committees
DAU
LL.M.
Program
Year in
Review
Conference
Westlaw, Briefing
Papers, Government
Contractor, Int’l
Government
Contractor, Seminars,
Etc.
Office of Federal
Procurement Policy /
acquisition.gov
Resources in U.S. Procurement Law
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11
US Sentencing
Commission
Sentencing
Guidelines §8B2.1
FIDIC (International
Federation of Consulting
Engineers)
1.
Code of Conduct
& Business
Integrity Policy
W/in 30 days: written code of business ethics and conduct
Firm Leadership =
Key to Success
No explicit reference.
Standards and
procedures
2. Knowledgeable
leadership
Business Integrity
Management System
(BIMS)
Final FAR Rule (73 Fed. Reg. 67064 (Nov.12
12, 2008) (effective 12/12/08), amending FAR
52.203-13): If contract > $5m/120 days, then:
Exclude risky
personnel
4.
Training
Training Program
W/in 90 days: business ethics awareness and compliance
program
5.
Monitor,
evaluate,
reporting
hotline
Resources,
manuals, forms,
check-lists and
records
W/in 90 days: internal control system to facilitate timely
discovery
6.
Incentives and
discipline
Specification of
Responsibilities
W/in 90 days: internal control system to ensure corrective
measures
7.
Adjust
program to
risk
Corruption-Free
Procedures
Organizational
Structure
W/in 90 days: review and adjust
EXEMPT: SMALL BUSINESSES AND
COMMERCIAL-ITEM CONTRACTORS
W/in 90 days: “reasonable efforts not to include an
individual as a principal, whom due diligence would have
exposed as having engaged in conduct that is in conflict
with Contractor’s code of business ethics and conduct.”
3.
USSC Sentencing
Guidelines §8B2.1
Final FAR Rule:
13
Mandatory Disclosure
Self-reporting =
sentencing
factor§8C2.5.
Government may suspend/debar contractor for knowing
failure by principal, for up to 3 years after final payment, to
timely report – to both agency Inspector General and
contracting officer – credible evidence of [1] a violation of
certain federal criminal laws (fraud, conflict of interest, bribery
or gratuity), [2] civil fraud, or [3] significant overpayment, in
connection with award or performance or closeout of
government contract or subcontract.
Cooperation =
sentencing
factor§8C2.5.
Full cooperation . . . but need not waive attorney-client privilege
or attorney work product protections
No exception for
commercial item
contracts
Limited exceptions for commercial-item contracts
No exception for
work performed
abroad
No exception for contracts outside US
[Not tied to
contracts]
Reporting clause flowed down to subcontracts over $5
million/120 days
Conclusion
Professor Christopher Yukins
[email protected]
Tel. 202-994-9992