Spring 2017 (46:3)

     

    Courts & Judiciary

    Federal Circuit Year-In-Review 2016 — Knowledge before Wisdom

    by Tara L. Ward, Gary S. Ward, Kendra P. Norwood, Margaret E. Matavich, Moshe B. Broder & Cara L. Lasley

    In 2016, as in past years, the U.S. Court of Appeals for the Federal Circuit heard a number of government contract cases involving a diverse set of legal issues. This year, the court considered everything from jurisdictional issues, to proof of economic harm, to the meaning of contract terms and clauses, to the applicability of government contract principles to non-traditional contract vehicles, and much more in between. Each case teaches us something — newfound knowledge we can mull over and try to interpret. Greater, long- lasting wisdom as to the overall meaning and import of these cases, however, remains just out of reach; we are left waiting, listening, for wisdom.

    In this Issue

    Model Rules of Professional Conduct

    Is It Time for a Single Federal Suspension & Debarment Rule?

    by Robert F. Meunier & Trevor B. A. Nelson

    In the early 1980s, the federal government improved the way in which executive branch agencies address waste, fraud, abuse, and poor performance in government-funded transactions by standardizing executive branch discretionary suspension and debarment procedures (sometimes referred to as “blacklisting”) in two separate rulemakings — one governing federal procurement transactions under the Federal Acquisition Regulation2 (FAR),3 and the second governing federal assistance, loans, and benefits under a jointly issued regulation called the Non-procurement Common Rule (NCR).4 The Office of Management and Budget (OMB) coordinated both initiatives.5 These rules were the direct result of several decades of criticism by the legal and business communities and the Administrative Conference of the United States regarding the federal suspension and debarment process.6 Following several court decisions that began to lay a constitutional foundation for a fundamentally fair debarment process,7 congressional oversight committees and the inspectors general community weighed in to bring about today’s regulatory scheme.8

    Federal Government

    Where the Sunshine Meets the Shade: Using FOIA Exepmtion 4 to Protect Confidential Compliance Information after the 2016 FOIA Improvement Act

    by Nathaniel E. Castellano

    Governments must constantly balance transparency and confidentiality — not too much sunshine, not too much shade. In the United States, the Freedom of Information Act (FOIA)1 illustrates this balancing act between transparency and confidentiality.2 FOIA provides transparency by giving requesters a broad right of access to agency records, but FOIA also provides several exemptions that allow agencies to maintain confidentiality by withholding certain requested records.3

    Government

    Cooperative Agreements & Foreign Aid: Examining USAID's Involvement in the Afghanistan Reconstruction Effort

    by Kelsey O'Brien

    Following a tense and tumultuous thirteen-year war in Afghanistan, the United States Agency for International Development (USAID or Agency) stepped up to provide foreign aid and reconstruction assistance to the wartorn nation. To carry out this public purpose, USAID entered into cooperative agreements with established implementing partners. Despite limited progress, the Afghanistan reconstruction effort largely resulted in allegations of waste, fraud, and abuse. Responding to allegations in the media and demands for accountability, USAID took action — suspending two of its largest and well-established implementing partners — without much explanation.

    National Security

    Negotiating In and Around Critical Infrastructure Vulnerabilities: Why the Department of Defense Should Use Its Other Transaction Authority in the New Age of Cyber Attacks

    by Krista A. Nunez

    The U.S. government prevents thousands of hackers from breaching its systems every day.1 An increase in the frequency of cyberattacks, however, requires that the federal government strengthen existing security defense mechanisms and preventative cyber tactic procedures. The U.S. Department of Defense (DoD) currently employs traditional procurement methods to obtain information technology (IT) defense contracts for software, hardware, and general technological development.2 Rather than continuing this process, which inhibits the DoD’s ability to keep pace with the ever-evolving cyber world and associated threats, the DoD must use its statutory power of other transaction authority (OTA) to protect, prevent, and defend against these threats. If the DoD does not actively invoke its OTA to create new cyber software and hardware agreements, hackers will reap increasing amounts of private information from the federal government’s databases and servers, invariably leading to detrimental consequences.3

    Federal Government

    Tackling the Cyber Threat: The Impact of the DoD's "Network Penetration Reporting and Contracting for Cloud Services" Rule on DoD Contractor Cybersecurity

    by Jessica A. Gunzel

    On June 4, 2015, the Office of Personnel Management (OPM) made a startling announcement: a “cyber-intrusion” led to hackers stealing roughly four million current and former federal employees’ personal information.1 As four million people came to terms with the fact that their Personally Identifiable Information (PII)2 was now in the hands of some unknown entity, news agencies quickly labeled this attack as one of “the biggest ever of the government’s computer networks.”3 On July 9, 2015, OPM dropped a second bomb: in a second “cyber incident,” hackers stole the personal information4 of 21.5 million people, including “19.7 million individuals that applied for a background investigation, and 1.8 million non-applicants, predominately spouses or co-habitants of applicants” from OPM’s background investigation databases,5 along with 5.6 million fingerprint records.6

    Federal Government

    The Developoment of Modern Government Contract Law: A Personal Perspective

    Review by Michael W. Mutek

    Only an experienced government contract law lawyer whose practice has spanned the development of government contract law since the 1960s and who has been afforded the opportunity to address major issues could attempt the ambitious task of writing this book. C. Stanley Dees fits that profile well. The Development of Modern Government Contract Law: A Personal Perspective is an important addition to the resources available to government contract lawyers and provides an understanding of the development of some key areas of government contracting.

    Topics of Interest

    Explore - Other Issues