Fall 2020 (50:1)

Vol. 50 No. 1   December 2020

Legislation & Lobbying

Government Purchasing During COVID-19 and Recessions: How Expansionary Legal Policies Can Stimulate the Economy

The traditional approaches to “cure” economic recessions are monetary and fiscal policies. Most economic crises are first addressed with monetary instruments, as the Federal Reserve’s extensive corporate bond purchasing program of March 24, 2020, has shown.However, when interest rates are zero or close to zero—referred to as the zero-lower bound—and the economic downturn is expected to be significant, governments often launch additional fiscal stimulus programs, such as the U.S. COVID-19 Stimulus Package in the amount of $2.2 trillion passed by Congress on March 27, 2020.But monetary and fiscal policies are not the only means of influencing an economy’s business cycle. A third and novel option is expansionary legal policies, also referred to as countercyclical regulation, which is the focus of this article.

National Security

Rejecting Erik Prince’s Plan to Privatize the War in Afghanistan

This article addresses Erik Prince’s plan to privatize the war in Afghanistan and argues that it should be rejected because it would involve contractors performing inherently governmental functions in violation of statute and executive policy. Part I introduces the argument against Prince’s proposed privatization. Part II provides a background of the United States’ contemporary use of private military contractors, the current war in Afghanistan, and Prince’s plan to privatize that war. Part III describes the legal framework governing private security contractors (“PSCs”) and discusses legal issues with Prince’s plan, specifically that contractors would perform inherently governmental functions. Part IV takes issue with Prince’s proposed viceroy and suggests potential legislation to prevent the contractual creation of such a role.

Notes

Public Contract

Bias in, Bias out: Why Legislation Placing Requirements on the Procurement of Commercialized Facial Recognition Technology Must Be Passed to Protect People of Color

Facial recognition technology is increasingly ever-present in today’s society, shaping and redefining integral aspects of human life. While this ubiquitous technology was created to be objective and neutral in its application, it is not immune to discriminatory biases. These biases have led to a highly disturbing situation, where, while being used disproportionately on People of Color, facial recognition technology is also disproportionately misidentifying these individuals as criminals. Meanwhile, commercial facial recognition technology continues to be procured by law enforcement agencies for policing and intelligence purposes. This Note argues that Congress must pass legislation amending the Federal Acquisition Regulation and place requirements on the procurement of commercial facial recognition technology in order to protect People of Color. This Note also proposes language for the legislation. Ultimately, the solution proposed by this Note is vital to help mitigate the disparate impact that the use of biased facial recognition technology will have on People of Color.

Legislation & Lobbying

Schedule A for All: A Noncompetitive Approach to Disability Affirmative Action in Federal Contracting

People with disabilities are less likely to be employed than people without disabilities. To combat this disparity, Congress created a mandate in Section 503 of the Rehabilitation Act of 1973, which requires federal government contractors to take affirmative action when hiring qualified individuals with disabilities. In 2014, regulations promulgated by the Office of Federal Contract Compliance (OFCCP) clarified that contractors should strive to hit a seven percent utilization goal: an aspirational, non–binding benchmark by which compliance can be measured. However, numerous problems remain. Applicants and employees are not incentivized to self-identify their disabilities, leaving contractors without a means to demonstrate compliance with Section 503. Contractors have little incentive to work towards the aspirational utilization goal besides OFCCP enforcement, which has declined in recent years. Contractors also lack clarity on how to comply with Section 503 and its regulations outside of nebulous best practices from OFCCP.

Public Contract

Size Matters: Implementing Post-Agreement Tracking in The All Small Mentor-Protégé Program

Mentor-protégé programs (MPPs) are meant to increase the participation of small businesses in government contracts by pairing small businesses with more experienced government contractors. The Small Business Administration (SBA), which already acts as the largest administrator of such agreements in the federal government, is becoming increasingly dominant in that sphere with the creation of its All Small Mentor-Protégé Program (ASMPP). This Note argues that postcompletion reporting does not ensure conformity with program goals, since a protégé’s ability to compete for future contracts on their own without the assistance of the mentor is not known immediately upon program completion. Therefore, Congress should amend the Small Business Act both to make the SBA subject to post-agreement tracking requirements and to enhance the clarity and specificity of the post-agreement tracking requirement currently in place for other agencies administering MPPs. Doing so would implement a measurement of whether protégés are benefitting under the ASMPP as intended and increase uniformity across federal MPPs.

Rule Of Law

Government Contracting and Emergency Powers in the Age of Government Shutdowns

In late 2018 and early 2019, the United States saw the longest government shutdown in history. While the shutdown made headlines as political news around the country, for many individuals it represented a loss of work, and for government contractors it resulted in billions of dollars in lost revenue. This Note focuses on the impact of government shutdowns on government contractors and suggests a novel solution: Congress should enact statutory emergency authority, available only in the event of a lengthy funding gap, enabling the President to make funds available immediately for the payment of government contractors. This statute would alleviate the strain that government shutdowns place on contractors and their employees. This Note explores the constitutional and statutory issues that may arise from the enactment of such a statute and argues that such a power would be within Congress’ delegatory authority to enact and the President’s executive authority to carry out.

Moot Court Briefs

Public Contract

Contract Claims Under Other Transaction Agreements: The 2020 Arnold & Porter Government Contracts Moot Court Competition [PDF Download]

This moot court competition considered the following issues: (1) Whether the Court of Federal Claims and the U.S. Court of Appeals for the Federal Circuit can properly exercise subject matter jurisdiction over claims arising from an Other Transaction Agreement pursuant to the Tucker Act; and (2) Whether a Project Manager properly exercised her authority in modifying an Other Transaction Agreement, such that the Government was bound by the modification. The contractor argues that the Court of Federal Claims and the U.S. Court of Appeals for the Federal Circuit have jurisdiction over claims arising from an Other Transaction Agreement because the contract breach results in a claim for money damages, fulfilling the money-mandating clause of the Tucker Act, and that a modification made by a project manager was binding because the Agreements Officer had both delegated her the authority to do so and she was recognized to have implied actual authority in the regular course of her duties. The Government argues that the Tucker Act does not provide jurisdiction to the Court of Federal Claims or the U.S. Court of Appeals for the Federal Circuit because Other Transactions are not procurement contracts, and thus the presumption of money damages does not apply, and that a modification made by a project manager was not binding on the Government because she lacked actual authority.