June 17, 2011
CRS on Presidential Authority to Impose Requirements on Contractors
Thanks to the Federal of American Scientists' Secrecy News Blog, we are able to link to this new report form the Congressional Research Service, authored by Vanessa K. Burrows & Kate M. Manuel, "Presidential Authority to Impose Requirements on Federal Contractors."
Here is the executive summary:
Executive orders requiring agencies to impose certain conditions on federal contractors as terms of their contracts have raised questions about presidential authority to issue such orders. Recently, the Obama Administration circulated, but did not issue, a draft executive order directing “every contracting department and agency” to require contractors to “disclose certain political contributions and expenditures.” The draft order cites the President’s constitutional authority, as well as his authority pursuant to the Federal Property and Administrative Services Act of 1949 (FPASA), which authorizes the President to prescribe any policies or directives that he considers necessary to promote “economy” or “efficiency” in federal procurement. The draft executive order refers to FPASA’s goals in that it directs actions “to ensure the integrity of the federal contracting system in order to produce the most economical and efficient results for the American people.” The draft order has been characterized by some as an “abuse of executive branch authority” because it resembles the Democracy is Strengthened by Casting Light on Spending in Elections (DISCLOSE) Act that the 111th Congress considered, but did not pass. If issued, the draft order may face legal challenge.
The outcome of legal challenges to particular executive orders pertaining to federal contractors generally depends upon the authority under which the order was issued and whether the order is consistent with or conflicts with other statutes. Courts will generally uphold orders issued under the authority of FPASA so long as the requisite nexus exists between the challenged executive branch actions and FPASA’s goals of economy and efficiency in procurement. Such a nexus may be present when there is an “attenuated link” between the requirements and economy and efficiency, or when the President offers a “reasonable and rational” explanation for how the executive order at issue relates to economy and efficiency in procurement. However, particular applications of presidential authority under the FPASA have been found to be beyond what Congress contemplated when it granted the President authority to prescribe policies and directives that promote economy and efficiency in federal procurement.
Some courts and commentators also have suggested that Presidents have inherent constitutional authority over procurement. A President’s reliance on his constitutional authority, as opposed to the congressional grant of authority under the FPASA, is more likely to raise separation of powers questions.
In the event that Congress seeks to enlarge or cabin presidential exercises of authority over federal contractors, Congress could amend FPASA to clarify congressional intent to grant the President broader authority over procurement, or limit presidential authority to more narrow “housekeeping” aspects of procurement. Congress also could pass legislation directed at particular requirements of contracting executive orders. For example, in the 112th Congress, legislation has been introduced in response to the draft executive order (e.g., H.R. 1906; H.R. 1540, § 847; H.R. 2017, § 713).
Job Opening: Associate Dean for Government Contracts at GW Law
The George Washington University Law School, in Washington, D.C. invites applications for an Associate Dean for Government Contracts Law.
JOB DESCRIPTION: Coordinates the GC LL.M. Program, ensuring that the efforts of the graduate admissions office, the communications office, the career development office, and the government contracts law faculty combine to create an academically strong, well-publicized program that meets students' and the bars' evolving needs. Assists in managing LL.M. degree design and student progress and completion of degrees. Assists in the management and supervision of student research and writing undertaken towards completion of LL.M. theses, relevant journal notes, and papers in related courses; works directly with students to facilitate publication. In conjunction with the government contracts library specialist, develops and administers special educational and research programs in the field of government contracts law. May be appointed to teach or co-teach one or more academic course(s) in government contracts law per year.
Works with the alumni office, the advancement office, and the GC faculty to coordinate GC alumni and advancement outreach, including organizing GC Advisory Board meetings and recruiting new GC Advisory Board members, and organizing alumni programs, lectures, and the annual luncheon (or similar events). Assists with the government contracts colloquia series. Attends bar, organizational, and public meetings to provide and receive feedback on issues that impact the government contracts law offerings of the Law School.
Publicizes the work of program faculty and students. In conjunction with the government contracts faculty and the legal research and writing faculty, assists in the management and supervision of the Public Contract Law Journal and the Federal Circuit Bar Journal. Creates and updates programmatic brochures, periodic newsletters, online information sharing (e.g., blogs) and provides appropriate input to annual law school publications (such as the Bulletin, Graduate admissions brochure, etc.). Engages in research and scholarship on relevant topics.
Works with the Student Bar Association, the Dean of Students Office, and the government contracts faculty to coordinate government contracts law student competitions and awards (including the internal Government Contracts Moot Court Competition and the major external annual writing competitions).
Serves as the principal contact for prospective students, visiting scholars, dignitaries, and other institutions concerning programs, conferences, cooperation agreements, and related activities involving government contract law. Investigates opportunities for international programs (e.g., exchange, summer abroad, fellowships, etc.). Participates in programs - domestically and abroad - that enhance the reputation of the Government Procurement Law Program and the George Washington University Law School.
APPLICATIONS/FURTHER INFORMATION: For applications and further information, please visit: https://www.gwu.jobs/postings/3820
June 16, 2011
Enough is Enough! Variation on a Theme: The Snake House
A timeless topic: bugs and real estate contracts. More specifically of late: bedbugs and real estate contracts. A recent variation: a house formerly used as a meth lab. A new variation: a house with a snake infestation. In this case, however, the buyers acknowledged the presence of snakes in disclosure form:
And our students think we have overactive imaginations in devising hypotheticals! Enough is Enough! (edited for TV/ContractsProf Blog):
[Meredith R. Miller]
June 15, 2011
Madden Coder Sues Electronic Arts for Breach of Contract
Developer Robin Antonick, the man who originally coded the John Madden (pictured at left) football game for Sega Genesis, has brought a suit against Electronic Arts (EA) claiming a breach of contract stemming from EA's failure to pay royalties for use of his work. According to Gamasutra, Antonick alleges that "all subsequent versions of the series are derivative works based on technologies he developed, specifically his football player behavior AI, the pseudo 'three-dimensional projection' of the field, the original game's instant replay feature, and the concept of a 'positional camera.'" In the suit, Antonick seeks payment for the use of these innovations.
According to this lengthy report in Bright Side of News, under the original contract, which has been amended since its creation in 1986, Antonick was entitled to royalties of 15% on all sales and 5% for derivative works. Since Madden football was started it has brought EA approximately $4 billion in profits. Antonick alleges that his work was used by EA in their other games including their NHL game. Antonick is seeking the past royalties plus interest.
Gamasutra reports that earlier this month, EA filed a motion to dismiss, claiming that no breach of contract has occurred because the features at issue are non-copyrightable and thus not covered by the contract. In addition, EA claims that the statute of limitations has already run. In addition, in response to Antonick's original demand for royalties, EA provided Antonick with the source code for its version of the game to prove that his code was not used. EA also has submitted five declarations saying the new version of the game was developed without using any of Antonick’s work.
Gamasutra concludes that, "[i]n order for Antonick to have a case, he will have to convince the court that his work amounted to original expression, rather than computer algorithms, which would make it copyright-protectable work."
[JT and Jared Vasiliauskas]
June 14, 2011
Weekly Top Tens from the Social Science Research Network
June 13, 2011
Great Discussion of Contracts Teaching
Over at the Glom and featuring contributions from:
Larry Cunningham (George Washington)
Gillian Hadfield (Univ. of Southern California)
Claire Hill (Minnesota)
Usha Rodrigues (Georgia)
Erik Gerding (New Mexico)
[JT, H/T to Alan White]