In This Issue

Federal Government

No Compete Contracting in Cooperative Purchasing? Proposed Solutions to Resolve Gaps in Competition, Transparency and Socioeconomic Policy at the State & Local Level

Federal contractors face difficult business challenges with shrinking federal procurement budgets and increasing competition.1 As a result, many contractors seeking new business opportunities in the government marketplace turn to state and local markets.2 Some experts calculate that “subentral” procurement spending (which includes state, regional, and local government purchases) exceeds the federal market by approximately two-fold — spending over $1 trillion annually on the procurement of goods, services, and construction.3 Thus, state contracting prospects provide new growth opportunities, especially for contractors that operate exclusively in the federal space. However, the state marketplace is not without its drawbacks and pitfalls. For example, while federal and state procurement systems operate parallel to each other in many ways, including by promoting competition, transparency, and efficiency, each functions in near independence and under vastly different rules, especially between different states.4

Federal Government

Simplifying Inherently Governmental Functions: Creating a Principled Approach from Its Ad Hoc Beginnings

In 1961, thousands of babies across Europe, the Middle East, and Canada were born with “flipperlike arms and legs and other defects.”1 But this massive problem was not occurring in the United States.2 Thanks to a U.S. Food and Drug Administration (FDA) employee, Dr. Frances Oldham Kelsey, the cause of these defects, thalidomide, had not been approved for sale in the United States to combat morning sickness.3 The company that sought approval for the drug, Merrell, complained to Dr. Kelsey’s supervisors and accused her of being a “petty bureaucrat.”4 After all, the drug’s availability across Europe should have equaled a straightforward approval.5 If the approval request had not landed on Dr. Kelsey’s desk but rather on the desk of a contractor working for FDA — looking to meet monthly approval quotas or fearing retaliation from his supervisors, this horrible drug might not have been kept off U.S. shelves. Every day, Americans rely on the federal government for services.


Still too Slow for Cyber Warfare: Why Extension of the Rapid Approach from Its Ad Hoc Beginnings

Cyber warfare is no longer science fiction.2 Millions of times each day, adversaries scan the Department of Defense’s (DoD) networks seeking vulnerabilities.3 They find and exploit such weaknesses.4 As Paul Rosenzweig warns, the DoD is poised for “catastrophic failure” in part because it “us[es] the wrong tools” for the fight in the cyber domain.5 Among these wrong tools lie “stifling acquisition rules.”6 In short, the DoD is too slow for cyber.7 Recognizing that the DoD’s acquisition process has proven unable to keep pace with the emerging threat, Congress relieved some of the regulatory burden on cyber procurement in the 2016 and 2017 National Defense Authorization Acts (NDAAs).8

Federal Government

If You Build It, They Will Relocate: Public Private Partnerships in Sport Stadium Financing

It looks like the Green Bay Packers will soon be the Chicago Packers. Although this scenario remains nearly impossible in the real world, the Madden NFL 16 video game allows for the possibility of team relocation for any team within the game.1 While the Packers may not actually be moving,2 the National Football League (NFL) recently considered three teams for relocation to Los Angeles: the Chargers from San Diego, the Rams from St. Louis, and the Raiders from Oakland.3


JCPOA: Implications & Effects on Our Foreign Military Sales Program

Despite its small size, Israel withstands the variety of threats it faces in the volatile Middle East region. Since the creation of the Jewish state in 1948, Israel has been involved with a near constant number of wars, armed conflicts, and skirmishes with its Arab enemies.1 Today, Israel faces threats from those enemies as well as from members of its own population who oppose the existence of a Jewish state.2 To combat these threats, Israel often looks for help from the United States — generally considered Israel’s strongest ally.3


Research & Development Contracts: The Key to Combating Ocean Acidification

Imagine planning a country’s national security. A powerful military, secure borders, and cyber security immediately stand out as relevant. What about the environment? “National security is not just about fighting forces and weaponry. It relates to . . . genetic resources [and] climate . . .”1 as well. John Kerry, President Obama’s Secretary of State from 2013 to 2017,2 called climate change a “threat multiplier” that exacerbates already existing problems.3 President Trump’s Secretary of Defense, James Mattis, agreed, stating climate change drives instability and must be given attention.4 In today’s connected world, environmental problems in one area of the world directly affect the rest of the world, especially the United States.5 Inadequate action regarding environmental issues in the “present may ultimately harm national security and other national interests in the long run.”6 As intuitive as this may be, integrating environmental protections into national policy has proven difficult, at least in part because of the complexity and scale of the issue, as well as the “institutional culture” surrounding the topic.7

Insurance & Financial Services

Reviving the Program Fraud Civil Remedies Act: Encouraging Widespread Utilization through Financial Incentives and a Centralized Administrative Tribunal

The typical case of fraud against the federal government involves a relatively small dollar amount per false assertion or claim.1 Federal agencies often investigate and present these cases to the Department of Justice (DoJ), but the DoJ ultimately brings no formal proceedings against the wrongdoer.2 For example, a contractor once allegedly defrauded ten military bases by wrongfully inflating prices on each of the ten contracts: a total alleged fraud of $50,000.3 However, “no single base was defrauded for more than $6,000.”4 The Department of Defense (DoD) developed the case, and each military base presented its own allegation of fraud to a separate U.S. Attorney’s office, each of which declined to move forward because of the minimal dollar amount associated with each case.5 Around the same time period, a contractor intentionally overbilled the Naval Investigative Service on a “base maintenance contract” for a total amount the Navy suspected exceeded $600,000.6 Evidentiary issues forced the Navy to pursue criminal charges on only $25,000 of the false claims, and the DoJ again declined to prosecute the contractor because of the “low dollar amount involved.”7

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