Government Contracts Newsletter Summer 2019

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

GOVERNMENT PROCUREMENT LAW

Perspectives

PROGRAM ESTABLISHED 1960

EVENTS

SUMMER 2019 ISSUE

Global Alumni Present at International Public Procurement Law Conference

EVENTS 1, 3, 6–8 FACULT Y NEWS 1–2, 4, 7–8

by Collin Swan (JD ’12), Professorial Lecturer in Law From left to right: Songezo Mabece, LLM ’18; Dr. Dominic Npoanlari Dagbanja, LLM ’09; Sandeep Verma, LLM ’09; Professor Sope WilliamsElegbe; Professor Geo Quinot; Collin Swan, JD ’12; and Professor Andrea Sundstrand.

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n November 12, 2018, several alumni of GW’s Government Procurement Law Program traveled to Cape Town, South Africa to participate in a global discussion of procurement issues facing the African continent and beyond. The Third International Conference on Public Procurement Law Africa was organized

by Professors Sope Williams-Elegbe and Geo Quinot of the African Procurement Law Unit at Stellenbosch University, with the aim of exploring procurement’s role in promoting development in uncertain times. Featuring a diverse array of speakers and discussants from academia, government, international organizations, and the private sector, the conference tackled topics ranging from the use of “smart contracts” and the effectiveness of domestic and social preferences, to issues of anti-corruption and governance.

Collin Swan, JD ’12, presented a paper written with co-author Belita Manka, LLM ’13, on the use of

debarment against poorly performing contractors. Mr. Swan and Ms. Manka, both of whom are attorneys at the World Bank, examined the debarment provisions of more than 20 jurisdictions, which revealed that although many procurement systems consider poor performance as a basis for debarment, the available guidance, prevalence, and experiences vary widely across these systems.

Songezo Mabece, LLM ’18, discussed the potential ways that the Competition Commission of South Africa could assist in identifying potentially anticompetitive bids through a widening of its regulatory scope. Mr. Mabece was the Justice Thomas Buergenthal Scholar at GW Law for the 2017-18 academic year before returning to his role as Legal Counsel in the Competition Commission of South Africa.

Sandeep Verma, LLM ’09, presented a keynote address covering recent continued on page 8

PROGRAM NEWS 5

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Murray Schooner Scholar Joins Program as Graduate Fellow

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ohn P. Fletcher, JD ’16, has joined GW Law as a Visiting Associate Professor and Graduate Fellow supporting the Government Procurement Law Program. On campus this summer, you’ll find him collaborating with Professor Steven Schooner on online course production; co-hosting a symposium on John Fletcher, JD ’16 the World Bank’s Suspension and Debarment survey with Professors Swan, Tillipman, and Yukins; and diligently updating the Formation of Government Contracts textbook with Professor Ralph Nash. In the fall, while pursuing his LLM degree, Mr. Fletcher will co-teach the Analytical Writing course for MSL students with Program continued on page 8

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Two New Experiential Learning Courses Added

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his year, the Government Procurement Law Program will expand its course offerings with two new experiential learning courses: Negotiations (fall 2019) and Suspension and Debarment (spring 2020). We interviewed the faculty members who will teach the courses, Adjunct Professors John Pachter and Armani Vadiee, both members of the law firm of Smith Pachter McWhorter, to gain insight about the new course offerings.

QUESTION: What’s your two-minute elevator pitch for why students should take your new courses: Negotiations, and Suspension and Debarment?

John Pachter

Armani Vadiee

PACHTER: Suspension and debarment is a subject that affects every company doing business with the government.

It’s the equivalent of a death sentence in criminal law. Nothing is more important than to learn the rules, policies, and practices associated with representing a company faced with the possibility that its livelihood could be cut off.

VADIEE: Negotiations is at the heart of a lawyer’s critical skillset. This new experiential learning course will give students exposure to real practice. On your very first day in law practice, your negotiations skills will be challenged by a senior colleague who says something that requires a response on your feet. In every transaction, every relationship, you are negotiating something. When put on the spot to extract a concession, you will need to know how to react, and this course teaches those skills in a safe, supported environment.

QUESTION: What advice can you give students about the value of experiential courses like these?

VADIEE: The practice of law started as one with a practicum education.

It used to be a trade learned through apprenticeship. Law schools are part of recent history. The value of active learning—applying rules, procedures, and best practices in context—is as, or more, important than classroom learning. We will encourage students to take risks, expect that sometimes things won’t go neatly as planned, but it will

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be a well-supported environment with constructive feedback that students can implement and grow from.

PACHTER: The Suspension and Debarment course culminates with a role-playing exercise. This past fall, the mock negotiation was the most exciting part of the course because it gave students an opportunity to use all they had learned in the class discussions and apply it in a setting where they could challenge each other. In my opinion, this type of exercise is far more effective than an exam where you are just writing.

It’s an interactive and fun way to learn, and it allows the professor to evaluate thinking and oral communication skills.

QUESTION: What attracted you to the opportunity to teach at GW Law? PACHTER: I spoke with Professor Christopher Yukins about his plans for a transatlantic conversation about suspension and debarment at a colloquium at Kings College London and kind of fell into it. As part of my practice in this area, I have served as an independent monitor. As a GW Law alum ( JD ’66, LLM ’70) and member of the Government Procurement Law Program’s Board of Advisors, it is particularly exciting to participate in something so unique as this class. I really enjoy engaging and learning with the students.

VADIEE: I have always respected this program, and before launching this course, I spent time observing Dean Robin Juni teach her Negotiations in Environmental Law course. It’s like conducting a symphony, with instructive lecture and more. My background as a lawyer and former contracting officer will show students what’s going on behind the scenes, what the government or industry is thinking at various points in the negotiations process. My goal for the students’ key takeaway will be to understand that what the other side considers a win might not be counter to what you consider a win.

continued on page 7

EVENTS

2019 Alumni and Friends Luncheon

Benjamin Phillips, Class of 2020, catches up with Professor Steven Schooner, LLM ’89.

Current and former LLM students gather. Standing (from left): Phillip Korman, Class of ’21; Pat Milott, LLM ’19; Professor Schooner; and Eric Gray, Class of ’21. Seated (from left): Ben Kacher, LLM ’14; Jennifer Sandusky, Class of ’20; Steve Hernandez, LLM ’19; Trinette Chandler, LLM ’18; and Aliya Hulse.

Professor Emeritus Ralph Nash, JD ’57, chats with Advisory Council and adjunct faculty member John Pachter, JD ’66, LLM ’70.

Kelly Krystyniak, JD ’11, with Assistant Dean Jessica Tillipman, JD ’03.

The last five years of Murray J. Schooner Scholars with Professor Schooner (second from right, and son of Murray Schooner) (from left): Nathan Castellano, JD ’15; Eric Valle, JD ’18; Victoria Dalcourt Angle, JD ’19; John Fletcher, JD ’16; and Krista Nunez, JD ’17.

Professors Steven Schooner and Christopher R. Yukins with Visiting Fulbright Scholar Professor Michal Kania, Silesian University.

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Faculty Highlights Steve Schooner’s article “Commercial Products and Services: Raising the Market Research Bar or Much Ado about Nothing?” appeared in volume 32 of the Nash & Cibinic Report (Thomson–Reuters, November 2018).

In September, along with Professor William Kovacic, Steve gave a series of presentations at the WTO Advanced Global Workshop on Government Procurement and Governance in Geneva, Switzerland. In December, he gave a keynote presentation discussing “Public Procurement, Good (Effective) Governance, and the Importance of Human Capital (People) to ‘the Business of Government’” at the First National Public Procurement Forum in Brasilia, Brazil.

In February, Steve made his annual presentation on “Emerging Policy and Practice Issues” at the West Government Contracts Year in Review Conference in Washington, D.C., and in March, he provided the keynote presentation, “Leading Innovation in Public Procurement,” at the Inter-American Development Bank Kick-Start Workshop on Improving Efficiency in Investment Management and Public Procurement in Lima, Peru.

He also gave a series of presentations on procurement-related topics at global and regional World Trade Organization workshops in Geneva, Switzerland (May 2019); in Kuwait City, Kuwait for Arab and middle-eastern countries (April 2019); and in Mexico City for Latin American countries (March 2019). In early May 2019, he taught a week-long module, Contract Complaints and Disputes, to students pursuing the international master of public procurement

management degree at the University of Rome Tor Vegata in Frascati (just outside of Rome), Italy.

Jessica Tillipman continues to blog (at fcpablog.com) and present on topics related to anti-corruption and compliance. In April, she presented at the ABA Suspension and Debarment committee meeting, and in May, she moderated a panel at GW Law on the World Bank’s debarment survey. She provided training on U.S. best practices in anti-corruption to a delegation of local government officials from Brazil as part of the USTDA Global Procurement Initiative in June.

In July, she was quoted in the New York Times on the impact of prosecutorial discretion following the Supreme Court’s decision to hear an appeal of Governor Chris Christie’s staffers who were convicted under federal corruption laws for their role in Bridgegate.

Christopher Yukins is working on projects with the U.S. Commerce Department and the European Bank for Reconstruction and Development to improve the procurement systems in the Dominican Republic, Kyrgyzstan, Ukraine, and Moldova. He spent several days in December lecturing in Chisinau, Moldova, before teaching Professor Laurence Folliot-Lalliot’s master’s students in law and economics and international trade at the University of ParisNanterre. With Professor Gabriella Racca of the University of Turin, he is co-editing a book of collected essays, primarily by European academics, on innovation in procurement. He attended two conferences at the Sorbonne

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recently: one organized by the European professors’ consortium producing the referenced text on procurement, and one where he spoke on international trade in procurement during the Trump administration.

Chris also recently published articles on shifts in European defense procurement policy and trade, and on how new online procurement models (what some call “Amazon.gov”) could affect longstanding norms in procurement. He completed a chapter (with Professor Sope Williams-Elegbe of Stellenbosch University, South Africa) on the World Bank’s ongoing procurement reforms. With Program Director Karen Thornton and several distinguished members of our alumni community, he launched a weekend course on debarment of corrupt contractors, which likely will be a “bookend” course (i.e., one that students attend in person in Washington) as the Government Procurement Law Program offers a full suite of online courses in the coming year.

This summer, Chris is speaking at conferences in Madrid and Nottingham (UK) on what is known colloquially as “Amazon.gov,” a federal initiative to allow government users to make direct purchases from online electronic marketplaces, bypassing traditional procurement channels and raising questions regarding accountability, transparency, competition, and international trade obligations. He also is publishing a chapter on procurement and trade in a forthcoming Cambridge University Press volume on the now-renamed Comprehensive and Progressive Agreement for Transpacific Partnership. n

PROGRAM NEWS

GW Law and DAU Sign Partnership Agreement

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W Law and the Defense Acquisition University have joined in a strategic partnership to help DOD acquisition professionals achieve their education and career goals with a Master of Studies in Law for Government Procurement from GW Law. n Pictured (from left): Professor Chris Yukins, Professor Steve Schooner, Visiting Associate Professor John Fletcher, Program Director Karen Thornton, DAU Chief of Staff Joe Johnson, Interim Dean Chris Bracey, DAU Center Director for Contracting and Small Business Kevin Linden, Assistant Dean Jessica Tillipman, DAU Director of Protocol and Strategic Partnerships Caren Hergenroeder, and DAU Director of Academic Programs Wen Lin.

Government Contracts Advisory Council

The Government Contracts Advisory Council allows the Government Procurement Law Program to draw upon the support, advice, and expertise of a wide range of leaders from throughout the public procurement and acquisition field.

Chair

Paul F. Khoury, JD ’86 Wiley Rein

Chair Emeriti

Thomas M. Abbott, JD ’84 J. Richard “Rick” Knop, JD ’69 FedCap Partners

Members

Kara L. Daniels, JD ’98 Arnold & Porter Lynn David David Associates Alice M. Eldridge, JD ’91 BAE Systems Kevin F. Hartley, JD ’83 Microsoft Corporation

Rand L. Allen Wiley Rein

Barbara W. Humpton Siemens Government Technologies

Michael J. Askew Raytheon Integrated Defense Systems

Won K. Lee General Dynamics Missions Systems

Greg Bingham The Kenrich Group

Frederic M. Levy Covington & Burling

Mathew C. Blum, JD ’88 Office of Management and Budget

Marcia G. Madsen Mayer Brown

The Honorable Ruth C. Burg, JD ’50

Dorn C. McGrath III, JD ’82 Kelley Drye

Angeline G. Chen Siemens Government Technologies Adelicia R. Cliffe, JD ’06 Crowell & Moring

James C. Mifsud, LLM ’86 Lockheed Martin Corporation Ralph C. Nash, Jr., JD ’57 The George Washington University Law School

Robert Nichols Nichols Liu John S. Pachter, JD ’66, LLM ’70 Smith Pachter McWhorter Dana B. Pashkoff, JD ’97 Drinker Biddle Rebecca E. Pearson, LLM ’96 Venable Ronald S. Perlman, LLM ’80 Holland & Knight Edwin L. Phelps, JD ’68 Phelps Enterprises International Allison D. Pugsley, JD ’02 Hogan Lovells U.S. Dean W. Rutley, BA ’83, JD ’86 Womble Bond Dickinson The Honorable Jeri K. Somers Civilian Board of Contract Appeals Roger Waldron Coalition for Government Procurement The Honorable Thomas C. Wheeler U.S. Court of Federal Claims Ralph O. White, Jr. U.S. Government Accountability Office Karen L. Wilson, LLM ’82

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EVENTS

Arnold & Porter Moot Court Champions Crowned

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his year’s Arnold & Porter Government Contracts Moot Court Competition centered on issues related to a contractor’s experience of delays caused by the agency’s updated base security measures and the government’s invocation of the Sovereign Acts defense and deference for interpretation of its own regulations. At the reception held at the offices of Arnold and Porter, Judges Erica Beardsley (CBCA), Stephanie CatesHarman (ASBCA), and Diane Mego (USPSBCA) declared Craig Barrett and Paul Korol, counsel for the contractor, winners of the competition over Mark Dodge and Rebecca Gansca, counsel for the government. Awards for Best Brief went to Raymond Richards and Justin Terry for the contractor and to Chris Hebdon and Stephanie Villalta for the government. The Best Oralist award went to Paul Korol.

A Fireside Chat with Maryane Lavan

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he Government Procurement Law Program hosted a fireside chat with Maryanne Lavan, Senior Vice President and General Counsel of Lockheed Martin, for a discussion on her leadership style and corporate ethics.

President Franklin D. Roosevelt coined the term “fireside chat” to refer to the familiar tone of evening radio addresses he used to connect with the nation between 1933 and 1944.

Karen Da Ponte Thornton, Director of the Government Procurement Law Program, led the fireside chat discussion posing seven questions to Ms. Lavan. The event was live-streamed to accommodate the program’s unique distance education

(from left to right): Mark Dodge, Rebecca Gansca, Judge Diane Mego, Judge Erica Beardsley, Judge Stephanie Cates-Harman, Paul Korol, and Craig Barrett

This year, in the second offering of the experiential government contracts moot court companion course, Chief Judge Jeri Somers (CBCA) brought new active learning exercises to the class.

In their course evaluations, students declared, “I highly recommend this

student population. “We never want students who can’t come to campus to feel left out from our professional development programs,” Professor Thornton explained.

During the discussion, Ms. Lavan spoke about her commitment to increasing diversity and inclusion in the legal field as well as recounted the ways reading and parenting have broadened her perspective and made her a better, more humble leader. She told stories of career triumphs earned through hard work, lessons learned from unexpected mentors, and the importance of being yourself. “As we talked I could see how authentic, and humble, Ms. Lavan is as a leader. She really listened and was fully engaged and shared experiences that were very relatable to our students,” Professor Thornton said.

The discussion concluded with audience questions and was followed

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class for anyone looking to improve their writing, oral argument, and overall professionalism,” and “I really enjoyed the class and feel my confidence has drastically improved throughout the semester.” n

Professor Karen Da Ponte Thornton (left) with Maryanne Lavan (right).

by the opportunity for attendees to network with Ms. Lavan. “She spent 30-40 minutes in one-on-one conversations with the students,” Professor Thornton shared. “She was so approachable and genuinely encouraged students to pursue their career goals in the defense and aerospace industry.” n

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GW Law & Kings College London Hold Annual Symposium on Transatlantic Issues

by Michal Kania, Visiting Fulbright Scholar

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W Law and the Kings College London Dickson Poon School of Law annual symposium on transatlantic issues in public procurement took place Monday, March 18 in London. This year, the discussion concerned exclusion and debarment in procurement.

The United States was represented by academics and practitioners connected with GW’s Government Procurement Law Program, including Professor Christopher Yukins; Program Director Karen Thornton; Collin Swan of the World Bank Suspension and Debarment Office; Dominique Casimir of Arnold & Porter, Washington, D.C.; Duc Nguyen, a suspension and debarment official with the U.S. Environmental Protection Agency; Paul Khoury of Wiley Rein, Washington, D.C.; John Pachter of Smith Pachter McWhorter, Tysons Corner, Virginia; and Michal Kania, Fulbright Visiting Scholar from the Silesian University, Katowice, Poland.

Experiential Learning Courses from page 4

QUESTION: You were both spotted at the annual Friends and Alumni Luncheon this past February. What does it mean to you to be part of this community?

VADIEE: We all have a common interest in the fairness and effectiveness of the government procurement system. Our broad community is unique; it’s like a family. The level of professionalism and ethics among the practitioners in this field is very high and that is not true of every field. It’s a nice area of practice because people can make a different kind of contribution at different times of their career. “Revolving door” is a narrowminded way of looking at it; in fact, it’s a

(from left to right): Professor Michal Kania, Program Director Karen Thornton, Ruairi McDonald, John Pachter, Paul Khoury, Collin Swan, Alix Town, and Professor Christopher Yukins

During the seminar, judges, government officials, attorneys, professors, and representatives from the multilateral development banks shared their knowledge and experiences connected with the implementation of suspension and debarment, in both United States and European Union regulation. The meeting was a great opportunity for the Europeans, who had the occasion to recognize the sophisticated American approach and to analyze possible implementation within article 57 of

the Directive 2014/24/EU of such legal construction as: mandatory compliance requirements for all government contractors, the assignation of the suspension and debarment office, and the mechanism of administrative agreement.

Michal Kania, Professor at Silesian University in Katowice, Poland, teaches on public procurement law, public-private partnership and concession contracts law, administration law, public investment law, negotiations in public administration, and project management. n

great benefit to government when folks come in from industry and practice.

VADIEE: I didn’t attend GW Law, but I had a professor who was a GW Law alum, Mark van Alstein, for Contracts.

What I found most valuable in his teaching was that he had a positive outlook on the work, and he had a lot of excellent stories about his own private practice days. He transformed his lessons out of the theoretical into the practical. That’s what I want to model.

My learning has continued working under John [Pachter]. I learned the practice of law and government contracts, and how to conduct myself as a professional, from him. n

QUESTION: What teacher inspired you most, and what trait of theirs do you hope to emulate in the classroom?

PACHTER: Ralph Nash stands out among all my professors. He set a very high example of how to deal with people.

He had a fresh approach to education and the process. He was always very honest and candid about flaws in the legal education process and the need for teachers to be responsive to the educational objectives of students. He is a fine fellow. Number one in my book.

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International Public Procurement Law Conference from page 1

Mr. Swan (center) with Professors Williams-Elegbe (left) and Quinot (right) from Stellenbosch University.

procurement reform efforts in India, including in his home state of Rajasthan.

Mr. Verma examined the particular political influences that often shape procurement reform, as well as the importance of obtaining buy-in from necessary stakeholders to ensure that reforms are tailored to actual needs. Mr.

Verma currently serves as the Principal Secretary to the Department of Science and Technology in the Government of Rajasthan.

Dr. Dominic Npoanlari Dagbanja, LLM ’09, presented his paper on the potential conflicts between international investment agreements, through which national governments agree to abide by favorable standards for foreign investment, and certain public policy objectives in procurement that are designed to promote local development.

Dr. Dagbanja serves as a Lecturer in Law at the University of Western Australia.

“That many of our esteemed GW alumni participated in this conference reflects the truly global reach of our programming and our alumni base,” said Professor Karen Thornton, Director of the Government Procurement Law Program. “It also reflects the tremendous efforts of Professors WilliamsElegbe and Quinot in developing the African Procurement Law Unit. We look forward to future collaboration between our two programs.”

The African Procurement Law Unit at Stellenbosch University was formed in 2012 with the aim of fostering academic engagement, research, and training on public procurement regulation on the African continent, as well as the building of procurement-related networks in Africa and abroad. n

Left: Mr. Mabece presented on the Competition Commission of South Africa. Center: Mr. Verma discussed recent procurement reform efforts in India. Right: Dr. Dagbanja discussed conflicts between international investment agreements and procurement.

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Murray Schooner Scholar from page 1

Director Karen Thornton and provide career and professional development guidance to students in all the government procurement degree programs.

During his own JD studies at GW Law, Mr. Fletcher was named the Murray J. Schooner Government Procurement Law Scholar in recognition of his superior academic achievement in program courses. He also was recognized with a top writing award in the Government Contracts Moot Court Competition; served as a Note Editor on the Public Contract Law Journal (PCLJ), supervising and mentoring students who were producing scholarship in the field of government procurement law; and published his own Note in the PCLJ. After graduation, Mr. Fletcher served as an associate in Wiley Rein LLP’s government procurement law practice group, where he counseled and represented government contractors on a broad range of legal issues, including internal investigations, bid protests, and complex litigation in federal and state courts. He regularly represented contractors and subcontractors in federal courts and before various administrative forums in a variety of litigation matters, including contract claims and disputes before the Boards of Contract Appeals and bid protests at the U.S. Government Accountability Office and the U.S. Court of Federal Claims.

He also gained considerable experience defending clients in False Claims Act and qui tam matters.

Mr. Fletcher is a disabled veteran and served in U.S. Army Special Operations.

His time in uniform drew him to procurement law and demonstrated the need for a highly skilled acquisition workforce. He understands firsthand the impact procurement professionals have on the ability of U.S. service members to effectuate U.S. foreign policy objectives.

As a visiting professor, Mr. Fletcher is excited to support the training of the next generation of acquisition professionals while also contributing to scholarship in the field of federal procurement law. n