Government Procurement Law Perspectives

T H E GEORGE WA SHI NGTON U N I V ER SIT Y L AW SCHOOL

GOVERNMENT PROCUREMENT LAW

Perspectives

PROGRAM ESTABLISHED 1960

Student Writers Sweep ABA Public Contracts Writing Competition

SUMMER 2018 ISSUE PROGRAM NEWS 1–6, 8 FACULT Y HIGHLIGHTS 7

Pictured (l-r): Professor Collin Swan, JD ’12; Program Director Karen Thornton; Eric Valle, JD ’18; Jessica Berrada, 4LE; Chung Kun “Kevin” Park, JD ’18; and Professor Steven Schooner

J

essica Berrada, 4LE, and Chung Kun “Kevin” Park, JD ’18, shared first place in the 2018 American Bar Association’s Division I Public Contracts Writing Competition. Murray Schooner Scholar Eric Valle, JD ’18, took third place. Mike Pangia, LLM Class of ’19, Jesse Greene, LLM ’17, and Francis Kiley, LLM ’17, brought home all three prizes in Division II of the competition, marking another clean sweep for GW Law. The annual writing competition provides monetary awards to law students and young lawyers for outstanding papers that address a topical issue of interest to the public contract and grant law community.

Ms. Berrada presented her paper, “Zen and the Art of Suspension and Proposed Debarment: A Call for Pre-Exclusion Notice and Opportunity to Respond,” at the Federal Procurement Institute on March 15, 2018. Ms. Berrada’s note proposes a FAR amendment that would make pre-exclusion notices compulsory except when the government requires immediate protection from a contractor that presents continuing, likely, and

immediate future risk to the government’s reputation or operations. “I am deeply honored by the Public Contract Law Journal’s selection of my note as firstplace winner. Having the opportunity to contribute to the prestigious Public Contract Law Journal and speak at the section’s Federal Procurement Institute are exciting ways to contribute to the legal community’s intellectual trust,” Ms. Berrada said.

Kevin Park’s paper, “Removing Uncertainty for the Most Uncertain Times: The Need for Amending the Anti-Assignment Acts to Better Prepare for a Financial Crisis,” which focused on a 2005 case from the U.S. Court of Federal Claims, Anchor Sav. Bank v. United States, was published in the winter 2018 issue of the PCLJ. “Ever since I came to GW Law, I had been looking for an opportunity to write an in-depth analysis about an aspect of the 2008 financial crisis,” Mr. Park said. “This topic fascinated me, and I worked with Professor Steven Schooner and Professor Collin Swan to find an intersection between it and government contracts.” n

Stephanie Villalta, Women In Government Contracts Summer Fellow

S

tephanie Villalta, JD Class of ’19, has achieved her dream of launching a career in public service. This summer, she is an intern at the U.S. Department of Energy’s (DOE) Office of the Assistant General Counsel for Procurement and Financial Assistance, an opportunity made possible in part by a summer stipend funded by the GW Law Women in Government Stephanie Villalta, 3L Contracts. Stephanie’s outstanding professionalism and work product on bid protests and procurementrelated policy and rule-making issues have resulted in a 3L clerkship that will become an attorney position once she graduates and passes the bar.

Beth A. Kelly, JD ’89, a DOE Deputy Assistant General Counsel who runs the internship program, says Stephanie will join two other GW alumni who were previously interns. “The fact that DOE has hired so many interns as attorneys is a true testament to the strong Government continued on page 5

PROGRAM NEWS

IFBEC and GW Law Partner for Conference

W

hen it came time for Raytheon to serve as host of the International Forum on Business Ethical Conduct’s (IFBEC) eighth annual fall conference, held in October 2017, the organization sought

out GW Law and Assistant Dean Jessica Tillipman as partners. IFBEC is a private association of more than 30 leading aerospace and defense companies that have committed to global principles of ethical business conduct, with a particular focus on zero tolerance for corruption and on promoting best practices and high ethical standards in international business activities. Dean Tillipman planned an exceptional series of panels featuring international scholars, expert practitioners, and seasoned

IFBEC panelists

Professional Development Events on Campus

T

hroughout the spring semester, the GW Law Women in Government Contracts group has sponsored a series of workshops intended to help students find and project their professional voice. Chief Judge Jeri Somers of

Program Director Karen Thornton with Admiral Kirk Foster (Ret.), LLM ’95

the Civilian Board of Contract Appeals kicked off the series in January with a presentation on “The Confidence Gap,” including her own journey of developing her professional identity. She was followed by Won Lee of General Dynamics and Susan Fine, GW Law’s Director of Professional Development, who presented useful tips for informational interviews and building mentoring relationships.

In March, we hosted “Fight, Flight, or Communicate,” a gender-inclusive conversation with practical and empowering advice on how to react in a #MeToo moment, provided by communications consultant Rachael Bosch of Fringe PD; Christine Tatelbaum, a labor and employment lawyer at NPR; and Aanjali Anderson, 2L, a former sexual assault victims advocate with the U.S. Army’s 82nd Airborne.

2 THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

Assistant Dean Jessica Tillipman

advocates from civil society organizations. Topics included current efforts to combat corruption, mitigation of corruption risks of offsets, human trafficking, developing beneficial ownership laws, and international developments in whistleblowing laws. The second day of IFBEC’s conference included experts and practitioners in government and private industry ethics and compliance who discussed IFBEC initiatives intended to broaden the reach of the organization’s “best practice” sharing efforts.​ To demonstrate its appreciation for a highly successful event, Raytheon made a generous donation toward a GW Law Women in Government Contracts summer fellowship. n

Chief Judge Jeri Somers

On February 14, retired Admiral Kirk Foster, LLM ’95, former Assistant Judge Advocate General of the Navy, joined Program Director Karen Thornton for a Q&A discussion about ethical leadership, the nuances of counsel’s role in investigations, how to be a creative and trusted advisor, and lessons learned from scandals such as the “Fat Leonard” case. n

PROGRAM NEWS

GW To Host Historic Debarment Conference in London

by Christopher Yukins, Lynn David Research Professor in Government Procurement Law and Co-Director, Government Procurement Law Program

G

W’s Government Procurement Law program saw historic firsts in March 2018, when in cooperation with King’s College, London (KCL), we co-hosted the first transatlantic meeting of judges, lawyers, and officials working in bid protests and coordinated talks on human rights and procurement by Justice Mbuyiseli Madlanga of South Africa’s Constitutional Court. These events, part of a series of London conferences held with KCL, will continue with a March 2019 program on debarment.

On March 5, GW Law and KCL co-hosted a transatlantic program on bid protests at Middle Temple, London, a center of the London bar. Over three sessions, judges and lawyers from the United States and across Europe— including GW Law’s Government Contracts Advisory Board members

Michael Bowsher (standing) with students in King’s College, London public procurement course.

Ralph White (GAO) and Paul Khoury , JD ’86 (Wiley Rein), along with Judge Elaine Kaplan (U.S. Court of Federal Claims)—described bid protests in their respective jurisdictions. Judges from Denmark, Italy, Sweden, Switzerland, and the United Kingdom discussed their work in procurement, and lawyers shared common perspectives on the challenges of bringing, and defending, bid protests.

The GW-KCL London conference confirmed that bid protests (sometimes called “remedies” or “challenges” abroad) are remarkably similar on both sides of the Atlantic. As panelist Jane Jenkins of Freshfields (London) noted, even where procedures differ in specifics—protests in the United Kingdom, for example, may end in large damage awards to the protester—the protester’s core goal, to correct error and gain an opportunity to compete fairly, remains the same across jurisdictions.

Judge Christopher Vajda, the UK-nominated member of the Court of Justice of the European Union, which is the supreme court of the EU, spoke on the last panel of the day. His comments on bid protests echoed a November 2017 address he gave at GW and that were published as an article in the spring 2018 issue of the Public Contract Law Journal. The Court of Justice, Judge Vajda explained, plays a pivotal role in shaping procurement law in the EU, as it reviews appeals from the

European member states and interprets the EU procurement directives. Judge Vajda’s comments, both at GW and in London, revealed extraordinary parallels in procurement law between Europe and the United States, even though until now there have been far too few exchanges between the European and U.S. procurement law communities.

The conference on bid protests set the stage for a later talk by Justice Madlanga at King’s College, London, en route to GW Law’s conference on human rights in procurement. Justice Madlanga sits on the Constitutional Court in continued on page 8

Professor Chris Yukins introduces Paul Khoury, JD ’86 (Chair, Government Contracts Advisory Board), and fellow panelists.

Justice Mbuyiseli Madlanga speaks with Professor Chris Yukins and Associate Dean Alan Morrison after giving the keynote address at GW Law’s colloquium, Public Procurement: A Human Rights Perspective.

GOVERNMENT PROCUREMENT LAW PERSPECTIVES 3

PROGRAM NEWS

Annual Alumni and Friends Luncheon

Professor Emeritus Ralph Nash (center) with students Eric Valle, JD ’18, and Songezo Mabece, LLM ’18.

Rachel Van Maasdam, LLM ’18, shares remarks about her experience in the government procurement program.

Professor Steve Schooner with Victoria Dalcourt, JD Class of ’19, and Lauren Horneffer, JD ’16.

Standing (from left to right): Sarah Hall, JD ’01; Joseph Berger, guest; Jon Kang, JD ’01; Stephen Smyers, JD ’07; and Professor Steve Schooner.

Seated (from left to right): Nathan Guerrero, JD ’01; Jennifer Howard, JD ’07; Damien Specht, JD ’07; Caroline Keller Ferraro, JD ’07; and Devon Engel, JD ’91.

4 THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

PROGRAM NEWS

Alumni Lunch from page 4

Standing (from left to right): Songezo Mabece, LLM ’18; Craig Barrett, LLM Class of ’19; Danny Gulley, MSGC ’18; Rabiat Ozigis, LLM ’18; Arwa Alrajhi, LLM ’17; Rachel Van Maasdam, LLM ’18; and Duc Nguyen, LLM Class of ’19. Seated: Program Director Karen Thornton and Professor Steve Schooner.

Government Procurement Law Perspectives Government Procurement Law Perspectives is published by the Government Procurement Law Program at the George Washington University Law School.

Leadership of the Government Procurement Law Program: Karen D. Thornton Director, Government Procurement Law Program

Songezo Mabece, LLM ’18, offers stirring remarks about taking what he has learned at GW Law back to South Africa and his hopes for a lasting partnership with GW.

Stephanie Villalta from page 1

Contracts Program at GW Law. My office appreciates all the help the program gives us in advertising for new interns and making sure that they are very well prepared in procurement.”

Stephanie, who is the first in her family to attend law school, has developed a strong passion for the government contracts field in her first two years at GW Law. She first became interested in a career in public service as a Senate intern in college. Taking advantage of the extensive internship opportunities made possible by the law school’s Field Placement Program, Stephanie held an internship at the U.S. Department of Commerce, Office of the General Counsel for Legislation, Regulation, and Oversight, where she saw the law-making function from the executive branch perspective. On campus, Stephanie has thrived in her government contracts coursework and looks forward

Cassandra Crawford Executive Aide Megan McGrath Corsetti Associate Director of Employer Outreach Mary Kate Hunter Research Librarian

to mentoring 2L members of the Public Contracts Law Journal.

The Women in Government Contracts summer fellowship was made possible by a generous gift presented by the International Forum on Business Ethical Conduct (IFBEC) in gratitude for Assistant Dean Jessica Tillipman’s efforts in planning and hosting IFBEC’s fall 2018 conference at GW Law. Stephanie says “the DOE internship gives me a chance to make my family proud. Receiving a summer 2018 fellowship from the IFBEC is an honor. Last summer, days before my 2L year classes began, I lost my father. Finishing my 2L year, even after such great heart break and interning at the DOE are a testament to the lessons in hard work and perseverance that my father taught me. Receiving the summer fellowship from the IFBEC is a testament to the go-getter attitude that my father instilled in me.” n

Steven L. Schooner Nash and Cibinic Professor of Government Procurement Law Joshua I. Schwartz E.K. Gubin Professor of Government Contracts Law Margaret Shepard Director of Development Jessica Tillipman Assistant Dean for Field Placement Christopher R. Yukins Lynn David Research Professor in Government Procurement Law The George Washington University Law School 2000 H Street, NW Washington, D.C. 20052 www.law.gwu.edu

Follow us: www.facebook.com/ groups/ GWProcurement/ LinkedIn Group: http://bit. ly/GWprocurement

GOVERNMENT PROCUREMENT LAW PERSPECTIVES 5

PROGRAM NEWS

Moot Court Highlights 2018

T

his year’s Dentons Moot Court Competition centered on issues of default termination and excess procurement costs arising out of an Air Force drone contract in which civilians were accidentally killed as a result of a contractor pulling the trigger on a drone in response to a senior officer’s order. As always, the facts in the problem were ripped from the headlines, but this year’s judges Elizabeth Newsom, JD ’92, and Cheryl Scott of ASBCA and Kathleen O’Rourke, LLM ’08, of CBCA agreed the briefs and oral argument were better than they had ever seen.

At the reception held at Dentons’ offices, Eric Valle, JD ’18, and Victoria Dalcourt, JD Class of ’19, counsel for the contractor, were declared the competition winners over Nicole Giles, JD ’18, and Ariel Stevenson, JD ’18, counsel for the government.

Awards for Best Brief went to Daniel Ramish, LLM ’18, and Cory Chipman, JD ’18, for the contractor, and to Rachel Van Maasdam, LLM ’18, and Bryan Medema, JD Class of ’19, for the government. Best Oralist awards went to Rachel Van Maasdam, LLM ’18, and Michael Pangia, LLM Class of ’19.

Considerable credit for the outstanding performances goes to Chief Judge Jeri Somers, CBCA, and the experiential government contracts moot court course she taught and co-created with Program Director Karen Thornton. Adding a course (and a second credit) to the competition provided students with much-needed structure, as well as writing and professional skills training. Each week, students engaged in in-class exercises on everything from research to oral presentations to mock mediations. Class discussions led by guest presenter Judge Kyle Chadwick, CBCA, offered students fascinating insights into judges’ expectations both in briefs and in the courtroom. Students also were required to complete journal entries

Chief Judge Jeri Somers; Cory Chipman, JD ’18; Daniel Ramish, LLM ’18; and Program Director Karen Thornton.

throughout the course of the semester, and by the end they realized how much they had overcome confidence issues and gained mastery of the substantive issues.

We look forward to growing the competition next year by sharing our syllabus for the course with local law schools and inviting their students to compete in a cross-town competition.

Stay tuned! n

(From left to right): Chief Judge Jeri Somers; Eric Valle, JD ’18; Victoria Dalcourt, JD Class of ’19; Judge Elizabeth Newsom, JD ’92; Judge Cheryl Scott; Judge Kathleen O’Rourke, LLM ’08; Nicole Giles, JD ’18; Ariel Stevenson, JD ’18; and Program Director Karen Thornton.

6 THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

FACULT Y HIGHLIGHTS

Faculty Highlights In February 2018, Professors Steven Schooner and Chris Yukins presented at the annual Year in Review Conference.

Professor Yukins’ piece, co-written with Professor Andrea Sundstrand of the University of Stockholm and Professor Michael Bowsher of King’s College, London, is titled “Tale of Three Regulatory Regimes—Dynamic, Distracted, and Dysfunctional: Sweden, the United Kingdom, and the United States.”

Professor Schooner and David Bertaeu, President and CEO of Professional Services Council, presented on emerging policy and practice issues.

Professor Yukins published two pieces for the Government Contractor: “European Commission Proposes Expanding the European Defence Fund: A Major Potential Barrier to Transatlantic Defense Procurement” and, with Daniel Ramish, LLM ’18, “Section 809 and ‘e-Portal’ Proposals, By Cutting Bid Protests in Federal Procurement, Could Breach International Agreements and Raise New Risks of Corruption.”

In February, we welcomed to campus Professor Jon Michaels of the UCLA School of Law constitutional law faculty for a book talk about his most recent scholarship, Constitutional Coup: Privatization’s Threat to the American Republic. In a Feature Comment for the Government Contractor, Professor

Schooner presents the book as an ambitious and extensive history lesson that describes outsourcing as having led to an existential crisis for democracy and civil service. Michaels urges a principled and fundamental step back from privatization: “particularly at this unique and seemingly anxiety-fraught moment in time, we fail to address these important questions now at our own peril.”

Steve Schooner’s article “False Claims Act: Greater DOJ Scrutiny of Frivolous Qui Tam Actions?” appeared in volume 32 of the Nash & Cibinic Report (Thomson-Reuters, April 2018).

In April 2018, Professor Schooner joined the World Trade Organization in Manila, Philippines, to discuss a number of government-contracts and trade-related issues at the National Workshop on Government Procurement. He then traveled to Mumbai, India, to provide a series of lectures as part of the U.S. Trade and Development Agency (USTDA) Global Procurement Initiative’s workshop on Obtaining Value in Public Procurement. On the way home, he stopped in Rome to teach a series of classes on claims and disputes at the University Tor Vergata’s International Master’s Program in Public Procurement Management.

Joshua Schwartz represented the Government Procurement Law Program at the Daniel Friedman Memorial Lecture at the Federal Circuit in

Professor Jon Michaels of UCLA School of Law (center) with (left to right) Professors Yukins, Thornton, Schooner, and Schwartz.

Professor Steve Schooner in Mumbai, India

November. Professor Schwartz spoke to a visiting Vietnam delegation at the Elliott School in December. In January, he provided Rule of Law Technical Assistance training on behalf of the USTDA to a delegation from Brazil and was an invited participant in a roundtable at the Atlantic Council’s Corporate Strategy Forum regarding Digital in Defense. He has a forthcoming invited chapter, “The End of Globalization in Procurement?: The Prospects and Challenges Going Forward to Further Global Standardization of Procurement Regimes, and the Risks of Retrogression,” in a volume edited by Peter Trepte and Anna La Chimia of the University of Nottingham (expected in summer 2018).

Karen DaPonte Thornton gave an Executive Interview in the April issue of Contract Management magazine about GW Law’s Government Procurement Program, ways professional development can be taught, and more.

Jessica Tillipman organized and hosted a one-day Foreign Corrupt Practices Act CLE on Emerging Issues in FCPA Enforcement. She also organized and hosted a one-day conference co-sponsored by the OECD, ASIL, and Miller & Chevalier titled Combating Impunity: Targeting Kleptocrats and Their Assets.

Dean Tillipman also spoke at a D.C. Bar event at the World Bank Group on the Global Fight Against Corruption: Sanctions, Monitoring, and Compliance Mentoring. n

GOVERNMENT PROCUREMENT LAW PERSPECTIVES 7

PROGRAM NEWS

War Dogs Movie Night

I

n November, Professor Steve Schooner and Adjunct Professor Collin Swan, JD ’12, sat down for a conversation with Guy Lawson, author of the book that became the movie War Dogs, in front of an audience of students and alumni at the Jack Morton Auditorium on campus. They treated the audience to a fascinating discussion of corruption in public procurement based on Mr. Lawson’s reporting on the stranger-than-fiction supply contracts the U.S. Army entered into with three Miami stoners to provide Russian-made ammunition to Afghan military units trained by U.S. troops. A showing of the movie followed.

Mr. Lawson, a Canadian who was educated as a lawyer in England, spoke knowledgeably about FedBizOpps, having taught himself just enough government contracts to keep up with the brilliant, yet greedy, young characters in his book as their contracts procurement careers unraveled. Most interesting to the government contracts audience was Mr. Lawson’s description of insider reporting and the relationships that some reporters develop with agency officials and how that relationship can sometimes blur the real story. n

Top: Professor Steve Schooner on stage with Adjunct Professor Collin Swan, JD ’12, and Guy Larson.

Bottom: Audience members included Scolaighe Goebert, MSGC Class of ’20; Pamela Dickerson, MSGC ’18; Nana Habrumman, MSGC ’17; and Devin Banks, MSGC ’17.

Debarment Conference from page 3

Johannesburg, the highest court in South Africa, and he discussed how his court has handled difficult issues of human rights and corruption in his young nation.

Justice Madlanga predicted that the South African courts will continue to play an important part in addressing the deep scars left by apartheid, and he touched on key procurement decisions from his court that have shaped the social and political evolution in South Africa. His address will appear as an article in the winter 2018 issue of the Public Contract Law Journal, which is co-produced by the American Bar Association’s Public Contract Law Section and a board of outstanding student editors at GW Law. The programs in London, part of a continuing series, were coordinated

by Professor Christopher Yukins and Michael Bowsher QC, a senior UK

barrister at Monckton Chambers and visiting professor at KCL; with kind assistance from Professor Andrea Biondi, Co-Director of the KCL Centre on European Law, and GW Law’s Government Procurement Program Director Karen Thornton; and with generous financial support from Government Contracts Advisory Board member Lynn David. The next GW-KCL conference is scheduled to be held in London on Monday, March 18, 2019, and will address emerging strategies for fighting corruption through debarment in the European Union and the United States. Information will be available on the Events page of GW Law’s website. n

8 THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

Pictured: Harriet Brown, LLM ’16; Jellie Molino, LLM ’17; Lynn David, Government Contracts Advisory Board Member; Professor Chris Yukins; and Program Director Karen Thornton