Class Notes
Tuesday, January 07, 2014
9:26 AM
Tuesday, 7 Jan 2014
litigation areas
· bid protest:
o 2 proper forums:
· K’ing agency
· 90% of protests occur: GAO
§ research occurs
· misc forum: US Court of Fed Claims
o appellate forum: USDCs → SCOTUS
· claims: problem with money due or expected from the gov’t; breach of K
o forums:
· admin board (4 of them)
· US Court of Fed Claims
§ no GAO involvement
o appellate forum: USDCs → SCOTUS
gov’t K lawyer
· counseling side:
o help companies understanding gov’t K’ing
· enter the field
· bid, protest, claims, due diligence (review documents/Ks held by another comp. set for merger), fraud waste & abuse, etc.
· implement caveats of procurement/K requirements
§ socioeconomic goals of gov’t Ks
· ascertain legal risks: showstoppers, etc.
differences b/t commercial & gov’t K worlds
in the commercial K world
in the gov’t K world
buyers & sellers pretty much equal
gov’t establishes all the rules & controls the process
fair dealing
public awards
fed K $: 60% goes to services; 70% goes to construction
K’ing tool box
· procurement: US gov’t purchases for its direct benefit
o goods, services, R&D, etc.
o most controlled & regulated
o K’or = receiving party
· grant:
o recipient
Thursday, 9 Jan 2013
Financial Controls + Socio-Economic
· TINA
· FAR Part 31 cost factors
· CAS
Chptr 2: The Setting
Friday, January 03, 2014
12:35 PM
2:1
· (8) gov’t procurement = acquisitions
o awarded, administered, & enforced not by a single gov’t dep’t but a variety of military & civilian agencies
o multitude of rules & regs
o gov’t branches (legislative, executive, & judicial) has a role to play
· sometimes w/ divergent objectives & results
Legislative Branch
Friday, January 03, 2014
3:14 PM
2:3 Legislative Branch
· fed “purse strings”
· Congress’s Government Accountability Office (GAO)
2:4 Legislative Branch – Congress
· ultimate source of funds for fed gov’t Ks
o no money can be paid out of the US Treasury unless funds appropriated by an act of Congress
· fed agencies may obligate funds only after authorized & appropriated, pursuant to the express limitations that may be set in the applicable appropriation act
· process:
o reps of gov’t agencies/dep’ts request funds to carry on their functions and hearings held (negotiations, concessions, etc.)
o approved budget referred to the House & Senate Appropriation Committees as a proposed authorization bill
· opportunity to review the legislation & determine whether it will be matched by an appropriation
· can allot any sum for an authorized project, provided it does not exceed the authorized ceiling
o final bill merely specifies a ceiling on spending, not necessarily provides the funds requested
· sent to President
· Anti-Deficiency Act (ADA)
o an officer/e’ee of the US gov’t may not:
· make/authorize an expenditure/obligation exceeding an amount available in an appropriation/fund for the expenditure/obligation; or
· involve the gov’t in a K/obligation for the payment of money before an appropriation is made unless authorized by law
o judicial awards do not violation the ADA no matter when ruled
· enacts the laws that directly govern federal procurement
o validity & construction of Ks to which the fed gov’t is a party is controlled by fed law
· examples:
§ Kors’ cost accounting practices
§ cost controls in negotiated procurements
§ dispute resolution procedures
o may exact compliance w/ standards or requirements different from the commercial marketplace
o sovereign not held to have waived one of its sovereign powers unless surrendered in unmistakable terms
o Courts have no authority to instruct Congress how to manage its oversight responsibility over agency procurement practices
o where the statute/reg is intended solely for the gov’t’s benefit, vendors have no right to enforce the procedure
· remedies for breach:
o Kors should consider alternative theories to the procurement statutes/regs when pursuing monetary relief against the gov’t
· K will be void where the illegality was plain or palpable on the face of applicable statutes
o K invalidation after full performance is not favored
o gov’t K term that violates/conflicts w/ a fed statute = invalid/void
o King officials (CO) lack the authority to waive statutory requirements, except as allowed by law
o case law split on whether a private party may be held to waive a statutory procurement requirement
2:5 Legislative Branch – Gov’t Accountability Office (GAO)
· controlled and directed by the U.S. Comptroller General: presidential app
amp; policies
§ creator, developer, & evaluator of uniform procurement policies
o Defense Acquisition Regulations (DAR) Council
· composed of the SecDef & each of the military dep’ts, Defense Logistics Agency, & NASA
· principle function = recommend revisions/additions to the FAR & the Defense FAR Supplement
o Civilian Agency Acquisition (CAA) Council
· chaired by a rep of the Administrator of the General Services and membership comprised of reps from the civilian agencies
· functional equal to the DAR Council for covered civilian agencies
· DAR/CAA Councils are jointly responsible for preparing & issuing revisions to the basic set of regs governing fed Ks (FAR)
Judicial Branch
Friday, January 03, 2014
2:53 PM
2:10 Judicial Branch
· principally influenced by the U.S. CoA for the Fed Circuit, U.S. Court of Fed Claims, and, to a lesser extent, by the SCOTUS
o Court of Fed Claims:
· statutory authority to decide Kor disputes w/ the gov’t
· alternatively: Kor may choose to appeal to an agency board of K appeals
· also has bid protest authority under the revised Tucker Act
o CoA for the Fed Circuit:
· appellate reviewer of decisions of the boards of K appeals & of the Court of Fed Claims
o District Courts & other CoA:
· traditionally been less directly involved in the fed Ks process
· very limited participation in considering the merits of K disputes b/c these forums have no jurisdiction where the case is covered by the statutes such as the K Disputes Act
· sig indirect impact on gov’t Ks practice b/c they, along w/state courts, decide all cases b/t prime Kors & subKors under federal Ks
o SCOTUS
· rarely agree to review gov’t K cases
· fed court decisions can directly affect the interpretation & application of rules & clauses (substantive rights & obligations frequently turn on the construction of gov’t regs & K clauses)
o specific statutes or Executive Orders affecting the gov’t Ks process may be construed by all fed courts
