On May 30, 2024, members of the ABA’s Section of Public Contract Law (PCL) gathered at Hogan Lovells LLP in Washington, DC, for the Section’s annual spring event, the half-day “Committee Showcase.” The Committee Showcase spotlights various PCL committees, providing updates on specific issues in procurement law and providing an opportunity for PCL members to get together and catch up. Three committees hosted a series of panel discussions, and a brief recap is provided below.
The Committee Showcase began with the Contract Claims and Disputes Resolution Committee hosting a panel discussion on “The Effective Use of Experts.” Greg Bingham (HKA Global, and Vice-Chair of the committee) led the discussion among a diverse panel of experts and lawyers: Daniel Rounds (Haynes and Boone), Christopher Foux (LitCon Group), and Devin Wolak (US Navy).
The panel focused on the effective use of experts in litigation and throughout the claims process. The panel emphasized the importance of retaining an expert early in a case–sometimes even before formal litigation begins–to help craft a request for equitable adjustment, assess litigation positions, advise on discovery, participate in negotiations or mediation, and (if needed) shape trial presentation. The panel also discussed the value of selecting an expert with excellent communication skills; an expert’s ability to explain complex information at a summary level, in detail, in writing, and in testimony, is key to effective case presentation, not to mention effective claim resolution. An expert with good communication skills can strengthen a case at trial and can also make important contributions during settlement negotiations and mediations with judges at the Boards of Contract Appeals or the Court of Federal Claims, or with other third-party mediators.
Next came the Procurement Fraud and False Claims Committee, hosting a panel discussion titled, “Procurement Fraud Roundtable: Government and In-House Perspectives.” Alexander Canizares (Perkins Coie, and Co-Chair of the committee) led the discussion among in-house and government lawyers: Christine Couvillon (IBM), Mary Clare Claud (GSA Office of Inspector General), and Christopher Terranova (US Department of Justice, or DOJ).
The panel focused on emerging issues and best practices in procurement fraud investigations from the perspective of government counsel and in-house practitioners. The panelists began by discussing the DOJ’s new Civil Cyber-Fraud Initiative, under which the government is combining its “expertise in civil fraud enforcement, government procurement and cybersecurity to combat new and emerging cyber threats to the security of sensitive information and critical systems.” The panel explored five significant settlements of cyber-fraud cases, including one from September 2023, wherein the DOJ commended the contractor for its cooperation with the government’s investigation. The panel also discussed potential collateral effects of a fraud settlement, including suspension and debarment, with an acknowledgement that suspension and debarment issues are managed by the individual agency, not the DOJ. The panel also discussed the value of investing in compliance in the first place, rather than being forced to react to a fraud allegation after the fact. Having effective policies and procedures in place is always the best practice.
The final presentation was from the Bid Protest Committee, hosting a panel discussion titled, “Bid Protest Appeals: What Makes the Appeal Different from the Protest?” Erica Bakies (Seyfarth Shaw, and Vice-Chair of the committee) led the discussion among experienced appellate lawyers: Judge Todd M. Hughes (US Court of Appeals for the Federal Circuit), Geoff Long (US DOJ), and Mark Mosier (Covington & Burling).
The panel focused on the unique aspects of bid protest appeals, including how they differ from earlier stages of a bid protest as well as how the appeals differ from other types of appeals. The panel explored how a party’s strategy might change depending on whether it is a protestor or an intervenor, including the appeal’s timing and whether the court might be willing to grant an expedited review to keep up with a potentially accelerated procurement schedule. The panel also discussed best practices when it comes to an appeal at the Federal Circuit, including understanding the court’s standard of review, writing persuasive briefs, and answering questions effectively at oral arguments.
Finally, the attendees were able to gather for a networking reception on the rooftop patio looking out on the Washington Monument. Hogan Lovells hosted the reception, providing everyone an opportunity to wind down after a long day and get caught up on each other’s lives. Many thanks to Stacy Hadeka and Bill Ferreira of Hogan Lovells for graciously hosting the event and reception, and many thanks as well to Eric Whytsell, PCL Chair, for inviting such a collegial tone for the Committee Showcase.
We look forward to seeing everyone at the next major Section event—the PCL meetings that will be held from August 1–3, 2024 in Chicago, Illinois, as part of the ABA’s 2024 Annual Meeting.
