Public Procurement Symposium Educates Attendees

From November 2–4, 2023, the ABA Section of Public Contract Law held its fall meeting with the Public Procurement Symposium in New Orleans, Louisiana. Hundreds of members and nonmembers attended, including some from across the globe. If you were part of the unlucky few who were not able to attend, here is a brief run-down on what you missed.

Grants

The Symposium kicked off with a primer, “Grants 101: An Introduction to and Refresher on Federal Grants and What May Be Changing.”

• Melissa Prusock (Greenberg Traurig) moderated the panel and walked Nicole Bacon (Feldesman, Tucker, Leifer, Fidell LLP), Brett Egusa (Thomson Reuters, Practical Law), and David Innis (San Francisco City Attorney’s Office) through a session that provided attendees an overview of the statutes and regulations governing federal grants, including the Uniform Guidance at 2 C.F.R Part 200.
• They also talked through the interplay between grants and contracts, using a real-world example of a potential event that could trigger grant funding in the New Orleans area to talk through the various topics, which included the diversity of agency approaches to applying the Uniform Guidance, common issues that arise, and metrics that can help measure “success.” Many of the state/local attorneys attending had questions for our panelists.
• To learn more about grant requirements and the Uniform Guidance, please see Nina Lenz’s article in this issue, “The Uniform Administrative Requirements for Federal Grants Under 2 C.F.R. Part 200: Cautionary Tales and Best Practices.”

Appropriations

Next up came a panel on “How Appropriations and Fiscal Law Is Adapting to an Increasingly Uncertain and Rapidly Changing World.”

• Stephanie Kostro (Professional Services Council) moderated the panel, which included David Dyer (US Army Corps of Engineers), Jamie Jackson (K&L Gates), and Nicole Vele (Michael Best & Friedrich LLP). They talked about the appropriations process and discussed the key aspects of fiscal law that every procurement attorney must know.
• As the panel took place on the heels of a continuing resolution, they used this recent development as a touchpoint to talk about the appropriations process (including predictions for a near-term shutdown). They also regaled the audience with tales of how the appropriations process plays out on Capitol Hill and in federal agencies, talking through the current economic landscape and how that landscape can and may impact appropriations issues.
• If you would like to learn more, please check out the article in this issue from Lyle Gravatt and Nicole Vele, “Appropriations and Fiscal Law in an Increasingly Uncertain and Evolving World.”

Infrastructure

Day 2 started with a session on “The State of the Implementation of Incentive Measures in Procurements in the Infrastructure and Inflation Reduction Acts.”

• Todd Guerrero (KutakRock) moderated and participated in the panel along with fellow panelists Peter Hahn (Benesch Friedlander Coplan and Aronoff, LLP) and Kari L. Skoriva (U.S. Department of Energy). They talked through the key provisions of the Infrastructure Investment and Jobs Act (IIJA) as well as the Inflation Reduction Act of 2022 (IRA) before discussing the best practices in obtaining funding—from both the government and private perspective.
• They ended with a discussion on implementation challenges, focusing on questions and issues that procurement attorneys may face as federal, state, and local governments build out infrastructure projects.

Affirmative Action & Diversity

Next came the panel on “The Future for Affirmative Action, Supplier Diversity, and Preferences in Federal, State, and Local Government Contracts.”

• The panelists included Sam Le (US Small Business Administration), Brian Barger (McGuire Woods), Colette Holt (Colette Holt & Associates), and Raymond Sanchez (Sanchez Strategies & Solutions).
• Although the panel topic was chosen just weeks after the US Supreme Court’s decision in Students for Fair Admissions, Inc. v. Harvard College, the panelists had plenty to discuss on how that case has impacted and may impact government contracts and government-funded programs going forward. They discussed the constitutional underpinnings of the case and how those same concepts are shaping current litigation, including lawsuits that have challenged government contracts programs such as the 8(a) program in cases like Ultima Services Corp. v. U.S. Department of Agriculture (E.D. Tenn.).
• They also discussed the potential challenges that could arise in the employment context for government contractors.

Fraud & the False Claims Act

Following a networking lunch came the panel “When Grants Go Bad and False Claims Arise.”

• Moderated by Habib Ilahi (Schertler Onorato Mead & Sears), the panel included Taylor Brown (IBM), Kandis Kovalsky (Kang Haggerty LLC), and Geeta Taylor (US Department of Health & Human Services, Office of the Inspector General).
• The group discussed False Claims Act considerations arising in the grants context. After discussing common issues for grant recipients, they then turned to enforcement trends and the logistics and practical aspects of False Claims Act cases. The panel ended with a discussion on risk mitigation and corrective action that grant recipients and contractors can take into consideration when crafting their internal compliance programs.
• To learn more about some of the fraud enforcement trends relating to grants, please review the article in this issue from Nena Lenz, “The Uniform Administrative Requirements for Federal Grants Under 2 C.F.R. Part 200: Cautionary Tales and Best Practices.”

Organizational Conflicts of Interest

The symposium ended with a panel on “Best Practices in Identifying and Resolving Organizational Conflicts of Interest.”

• Moderated by Ken Kanzawa (Kelley, Drye & Warren LLP), the panel featured Jose Arrojo (Miami-Dade Commission on Ethics and Public Trust), Danica Irvine (US Department of Defense Standards of Conduct Office), and Keith McCook (State Fiscal Accountability Authority of South Carolina).
• They started with a discussion providing an overview of common types of OCIs before moving on to more in-depth topics, including mitigation plans, responding if mitigation does not work, and bid protests. They then delved into the differences between organizational and personal conflicts of interest and how states and some localities have dealt with both types of conflicts.

Networking and Council Meeting

• In addition to the breakfasts, luncheons, and networking receptions, we closed out the Symposium meeting together in a Council Meeting, led by Section Chair Eric Whytsell (Stinson LLP).
• Section members met to discuss actions and information on legislation, regulations, and other current issues important to government contract practitioners.

Overall, it was a dynamic and informative Symposium. We thank all of the speakers for helping us walk through the complicated legal issues and giving us insights as to what problems we might be facing in the future. We look forward to hearing from them again, including in this newsletter. Special thanks, as well, to Symposium co-chairs Diana Mendez (Bizlin Sumberg) and John Prairie (Wiley), and especially to the conference director Missy Copeland (Schmidt & Copeland LLC).

We hope to see you at our next event, the 30th annual Federal Procurement Institute in Annapolis, Maryland, from March 6–8, 2024.