Jesse Greene is an active duty Army Judge Advocate who received an LL.M. in Government Procurement Law from The George Washington University Law School in September 2017. Major Greene currently serves as the Command Judge Advocate for the 414th Contracting Support Brigade, supporting U.S. Army Africa and the Southern European Task Force. In 2013 MAJ Greene served under Seventh Fleet, aboard the USS Blue Ridge, as Chief of Operational Law during Talisman Sabre, a joint, multinational exercise.
There’s no question in my mind that he tried to influence me. It’s like fishing. He’s got the hook. If he got an inch, he’d go for a foot. If he’d get a foot, he’d go for a yard.1
Three overarching principles form the foundation of the U.S. system of government procurement: integrity, transparency, and competition.2 Integrity, arguably, forms the cornerstone because “[b]ribery, favouritism, or unethical behavior ha[s] no place in a successful procurement system.”3 Transparency and competition help ensure integrity by “bringing in the sunlight, which serves as a disinfectant” to corruption.4 The contracting techniques utilized by a government agency affect the degree of transparency5 and competition in a given contract.6 But agencies also employ oversight mechanisms to guard against corruption.
The Federal Acquisition Regulation (FAR) charges government contracting officers (COs) with the responsibility to safeguard “the interests of the United States in its contractual relationships.”7 COs utilize contracting officer’s representatives (CORs) to monitor contracts, including submissions by contractors relating to cost.8 The Defense Contract Audit Agency (DCAA) performs audits.9 Agencies employ Inspectors General (IGs) to conduct investigations relating to contracts and receive reports regarding “violation[s] of [f]ederal criminal law involving fraud, conflict of interest, bribery, or gratuity violations … and violation[s] of the civil False Claims Act.”10 Some agencies, including the Navy, even have personnel authorized to perform law enforcement functions.11 Those personnel can, in effect, provide oversight of agency personnel providing contractor oversight.
Agency contracting personnel, however, are not the only personnel who interact with contractors on a regular basis. They are not the only personnel over whom a contractor can exert influence to obtain advantage. That reality underlies the importance of the ethical principle that requires all executive branch employees to avoid even the appearance of violating the law or ethical standards.12 One cannot overstate the importance of that principle because, as the Navy’s experience with Glenn Defense Marine Asia (GDMA) illustrates, no combination of contracting techniques, contract types, or oversight mechanisms can ensure procurement integrity without reinforcement from a command climate that promotes strict adherence to clearly articulated ethical standards to achieve effective training, monitoring, and enforcement.