U.S. Procurement Law and Practice Professor Christopher Yukins The George Washington University Law School London January 23, 2009

2 Introduction Professor Christopher Yukins is a former Justice Department lawyer, with many years of experience in U.S. public procurement 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 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 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 He is also of counsel to the firm of Arnold & Porter LLP

3 Procurement Law Academic Centers Washington, D.C. Beijing Birmingham Nottingham. Paris Bochum Montpelier Buenos Aires

4 Other Professors in Program Joshua Schwartz Fred Lees (emeritus) Ralph Nash (emeritus) John Cibinic (d. 2005)

5 Steve Schooner’s Desiderata Transparency Transparency Integrity Integrity Competition Competition Uniformity Uniformity Risk Avoidance Risk Avoidance Wealth Distribution Wealth Distribution Best value Best value Efficiency (administrative) Efficiency (administrative) Customer Satisfaction Customer Satisfaction

6 Historical Progression: U.S. Procurement Sealed Bids Negotiated Procurements (Competitive Dialogue) Task Order Contracting (Frameworks)

7 Fewer Acquisition Workers – Expanding Major Actions

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 personnel – e.g., rules and codes No Transparency, including in budgeting and accounting Yes

Resources in U.S. Procurement Law ABA Public Contract Law Section GW Law Other Institutions Thomson Reuters West Federal Government Public Contract Law Journal g Quarterly Conferences Procurement Lawyer General Services Administration Judge Advocate General’s School Office of Federal Procurement Policy / acquisition.gov House/Senate Armed Services Committees Colloquia Textbooks Year in Review Conference LL.M. Program Westlaw, Briefing Papers, Government Contractor, Int’l Government Contractor, Seminars, Etc. Pubklaw.com BNA Federal Contracts Reporter DAU World Bank Lexis-Nexis

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12 US Sentencing Commission Sentencing Guidelines - §8B2.1 FIDIC (International Federation of Consulting Engineers) Business Integrity Management System (BIMS) Final FAR Rule (73 Fed. Reg (Nov. 12, 2008) (effective 12/12/08), amending FAR ): If contract > $5m/120 days, then: 1. Standards and procedures Code of Conduct & Business Integrity Policy W/in 30 days: written code of business ethics and conduct 2. Knowledgeable leadership Firm Leadership = Key to Success No explicit reference. 3. Exclude risky personnel Corruption-Free Procedures 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.” EXEMPT: SMALL BUSINESSES ANDCOMMERCIAL-ITEM CONTRACTORS 4. Training Training ProgramW/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 Organizational Structure W/in 90 days: review and adjust

13 USSC Sentencing Guidelines - §8B2.1 Final FAR Rule: 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 Tel