January 16, 2012
Recent Contracts Scholarship Available on SSRN
Interested in the latest contracts scholarship available on the SSRN Contracts and Commercial Law eJournal? You can find it here.
In addition, we would like to call attention to some recent scholarship by friend of the blog, Steven Schooner and his crew:
First, we have Robert D. Anderson, Steven L. Schooner & Collin D. Swan, The WTO's Revised Government Procurement Agreement -- An Important Milestone Toward Greater Market Access and Transparency in Global Public Procurement Markets. Here is the abstract:
In December of 2011, the Parties to the World Trade Organization Government Procurement Agreement (GPA) adopted significant revisions to the Agreement. The revised Agreement comprises (a) a much-needed modernization of the text of the Agreement, (b) an expansion of related market-access commitments by the Parties, and (c) a set of Future Work Programs intended to enhance transparency among the Parties and improve the administration of the Agreement. In these unstable economic times, the importance of the GPA and its improvements cannot be overstated.
This article also bemoans the media's misrepresentation of the ongoing process of China's negotiated accession into the GPA. China continues to invest resources in upgrading its public procurement regime as it negotiates with the GPA Parties to open its government purchasing markets to systematic international competition.
Second, we have Collin D. Swan, Dead Letter Prohibitions and Policy Failures: Applying Government Ethics Standards to Personal Services Contracts. Here is the abstact:
The last two decades have been marked by numerous political efforts to reduce the size of the federal workforce and declare the end of the “era of big government.” These efforts left the federal government strapped for personnel and resources and have forced many agencies to increasingly rely on service contractors in general, and personal services contractors in particular, to fulfill their mandates. According to the Federal Acquisition Regulations, a personal services contract is a contract that creates an employer-employee relationship between the contractor and the federal government. Despite a longstanding — and, arguably, outdated — regulatory prohibition on the use of personal services contracts, many agencies are increasingly employing personal services contractors in positions traditionally reserved for government employees. The result is an absurd situation in which government ethics laws apply differently to service contractors and federal employees who work alongside each other, perform similar discretionary tasks, and have the same potential to engage in corrupt practices.
This Note argues that the personal services prohibition represents an outdated and inefficient method of protecting the government’s interest and should be abolished. Given the government’s current reliance on service contractors, procurement officials should not be concerned with whether a contract creates an employment relationship with the government, but instead with whether contractor personnel are being properly managed and supervised. Congress should thus explicitly abolish the personal services prohibition and apply government ethics laws to personal services contractors. This would reduce the ability of personal services contractors, who often perform discretionary functions on the government’s behalf, to act in their own personal interest to the detriment of the government’s mission.
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