In this Issue

Federal Government

Automated Source Selection Scoring & Far Compliance

On Earth today there are over five billion mobile phone users, almost four and a half billion internet users, and over three billion email users.1 Technology is a better way of doing things, providing an order of magnitude improvement in the cost-efficiency of virtually every professional industry. Indeed, one of the principal miracles of technology is “it allows us to do more with less.”2 Technological development is governed by Moore’s Law, which predicts that every two years the processing power of computers doubles, while its costs halve.3 The past fifty years have proven Moore’s Law correct.4 As a result, your cell phone has more computing power than all of NASA had in 1969, when Apollo 11 landed on the moon.5

Real Estate

The Good Neighbor Next Door: Public-Private Partnerships in Federal Real Property Management

Fifty-five acres of developable land positioned a few miles away from the U.S. Capitol is prime real estate, yet fifty-five acres of federally owned developable land located a few miles away from the Capitol remained barren for over 10 years.1 The land was too valuable to sell but also unsuitable for use as a traditional government site; therefore, due to its size and proximity to both public transportation and the Washington Navy Yard, the land was a good candidate for a public-private partnership designed to develop it and the surrounding neighborhood.2

Federal Government

The Slow Death of a Government Contracting Model: “User-Funded” Contracts in Privatized Misdemeanor Probation Monitoring

On September 18, 2017, the U.S. District Court for the Middle District of Tennessee issued a settlement agreement awarding $14.3 million to Cindy Rodriguez and the plaintiffs who joined in her class action lawsuit challenging the probation practices in Rutherford County, Tennessee.1 Perhaps more important than the monetary award is the injunction that accompanies it. As a result of the injunction, Ms. Rodriguez and thousands of probationers like her will no longer be forced to fund the conditions of their probation sentences.2 They will no longer pay out of their own pockets for court mandated drug tests, global positioning system (GPS) bracelets, or alcohol monitoring devices.3 They will no longer live in fear that any phone call or knock at the door could end in arrest, revocation of their probation, and imprisonment for failure to make those payments.4

Federal Government

Including a Definition of “Operation of Law ” in the Federal Acquisition Regulation : A Roadmap for Government Contractors Engaging in Merger & Acqisition Transactions

On February 22, 2013, a Delaware Chancery Court’s decision significantly affected the discussion regarding the assignment of government contracts. In Meso Scale Diagnostics, LLC v. Roche Diagnostics GMBH., Roche Holding Ltd. (“Roche”) acquired BioVeris Corporation (“BioVeris”) through a reverse triangular merger, in which a wholly-owned subsidiary of Roche merged into BioVeris, making BioVeris the surviving company with Roche as the sole shareholder.1 At the time of the merger, BioVeris had a contractual agreement with the plaintiff containing an anti-assignment clause prohibiting the assignment of certain intellectual property rights without the consent of the plaintiff.2 When confronted with the question of whether an assignment occurred during the transaction, the court concluded that a reverse triangular merger does not result in the assignment of the target’s contractual rights by operation of law.3 This decision raises a serious question as to whether reverse triangular mergers will be exempted from the Anti-Assignment Act (AAA) in the government contracts context.

Federal Government

Merits Matter : Qualifying Government Contractor Immunity

On August 17, 2017, a historic settlement1 was reached in the highly publicized CIA torture case, Salim v. Mitchell.2 The defendants in the suit were James Mitchell and “Bruce” Jessen, two psychologists who contracted with the government to design and implement an “enhanced interrogation techniques”3 program that was used on detainees thought to be withholding information related to terrorism.4 In short, the program employed physical and mental “tactics [that] meant to condition detainees into a state of helplessness.”5 The program was used on at least thirty-nine detainees6 and resulted in one prisoner’s death.7 The psychologists were sued by two survivors and the family of the deceased detainee under the Alien Tort Statute.8 In their complaint, the plaintiffs alleged that the “torture program with a scientific veneer”9 subjected them to “solitary confinement; extreme darkness, cold, and noise; repeated beatings; starvation; excruciatingly painful stress positions; prolonged sleep deprivation; confinement in coffin-like boxes; and water torture.”10 To boot, the Senate Select Committee on Intelligence released a report on the interrogation program which concluded that these tactics were both ineffective and ill-justified.11

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