Government Contracts in the United States

Legal Materials

The government contracting field is an interesting mix of business, law and government. This section researches the following areas:

Finding RFPs
Identifying Companies That Receive Government Contracts
Forms
Case Law (Judicial and Administrative Decisions)
Regulations
Treatises and Other Research Resources

Finding RFPs

You can search for Requests For Proposals (RFPs) from the U.S. government on FedBizOpps. Many states and many local governments and have equivalent sites, but in some places each agency is allowed to put out its own RFPs.

Companies that monitor RFPs include dgMarket, FindRFP, RFP Database, Bidnet and GovernmentBids.com. Loren Data’s FBO Daily E-Mail Service covers only Federal RFPs.

Identifying Companies That Receive Government Contracts

To identify companies that contract with the U.S. government, try SAM (System Award Management), USASpending.gov, FedSpending.org and/or Bloomberg Government(BGov). For Department of Defense contracts over $5 million, you can search the announcements in the Contract Archive. If the free sources don’t have what you need, you can search for Federal contract awards in the Federal Business Opportunities database on Lexis back to January 2002 (BUSREF;FEDBOP) or Westlaw back to April 2003 (COMBD).

Forms

The General Services Administration posts a Forms Library that includes government contracting forms. Forms from other agencies are available at Forms.gov. WK Forms for Government Contracts is available from CCH either independently or as part of the online Government Contracts Reporter. Official and practice-oriented forms are included in the multi-volume Government Contracts: Cyclopedic Guide to Law, Administration, Procedure (Matthew Bender).

Case Law (Judicial and Administrative Decisions)

“Case law” in the Federal government contracts arena includes decisions issued by the U.S. Federal courts and several administrative bodies. You can find cases and administrative board decisions all at once in the subscription-based CCH Government Contracts Library, which includes the CCH Government Contracts Reporter and the CCH Contract Appeals Decisions database. Alternatives include PubKLaw, Lexis and Westlaw.

Alternatively, you can research board decisions using the resources discussed in the entries for the Civilian Board of Contract Appeals, the Armed Services Board of Contract Appeals, Government Accountability Office (for Comptroller General decisions) and the United States Postal Service (for Postal Service Board of Contract Appeals decisions). You can search Federal cases using Lexis, Westlaw Google Scholar, or any other other research system you prefer. See also the entries for theUnited States Court of Federal Claims and the United States Court of Appeals for the Federal Circuit.

Regulations

See the Federal Acquisition Regulations entry for a discussion of the regulations governing government contracts.

Treatises and Other Research Resources

Government contracts treatises range from the small paperback Government Contracts in a Nutshell to the multi-volume Government Contracts: Cyclopedic Guide to Law, Administration, Procedure (Matthew Bender). The George Washington University Law School produces several good treatises including Formation of Government Contractsand Administration of Government Contracts, both by Ralph Nash and John Cibinic and The Government Contracts Reference Book: A Comprehensive Guide to the Language of Procurement by Ralph Nash. Most of the GW books are available online through CCH’s Nash & Cibinic eSeries, which is also available on Lexis.

The ABA Section of Public Contract Law publishes several practice-oriented books such as the Guide To Service Subcontract Terms and Conditions and Best Practices in the Acquisition of a Government Contractor. Click here to see all the government contracts books, CDs and MP3s currently available from the ABA Bookstore.

The CCH Government Contracts Reporter compiles most of the important government contracts-related laws, regulations, executive orders, and agency materials, as well as summaries of Federal court and Board of Contract Appeals decisions. The Reporter is available on CD-ROM or through Lexis (CCHGOV;CCHGCR), Westlaw (CCH-GCR) and the CCH’s subscription-based Intelliconnect platform. The Reporter is no longer available in print. For near-comprehensive coverage, the online CCH Government Contracts Library includes the entire Government Contracts Reporter, plus the full-text decisions of the various contract appeals boards from 1956 to present, an archive of Federal Acquisition regulations back to 1984, and the CCH Cost Accounting Standards Guide.

Government agencies provide information about their own contracting rules and procedures. The U.S. Department of Defense posts a Defense Acquisition Guidebookto explain the acquisitions procedures for goods and services purchased by the U.S. Military. The Federal Acquisition Jumpstation links to other U.S. agency web sites that provide information about contracting procedures.

For more resources, see the Georgetown University Law Library’s Government Contracts Law Research Guide.

Presidential Memoranda

Presidential Memoranda in relation with Government Contracting (March 04, 2009):

The Federal Government has an overriding obligation to American taxpayers. It should perform its functions efficiently and effectively while ensuring that its actions result in the best value for the taxpayers.
Since 2001, spending on Government contracts has more than doubled, reaching over $500 billion in 2008. During this same period, there has been a significant increase in the dollars awarded without full and open competition and an increase in the dollars obligated through cost-reimbursement contracts. Between fiscal years 2000 and 2008, for example, dollars obligated under cost-reimbursement contracts nearly doubled, from $71 billion in 2000 to $135 billion in 2008. Reversing these trends away from full and open competition and toward cost-reimbursement contracts could result in savings of billions of dollars each year for the American taxpayer.

Excessive reliance by executive agencies on sole-source contracts (or contracts with a limited number of sources) and cost-reimbursement contracts creates a risk that taxpayer funds will be spent on contracts that are wasteful, inefficient, subject to misuse, or otherwise not well designed to serve the needs of the Federal Government or the interests of the American taxpayer. Reports by agency Inspectors General, the Government Accountability Office (GAO), and other independent reviewing bodies have shown that noncompetitive and cost-reimbursement contracts have been misused, resulting in wasted taxpayer resources, poor contractor performance, and inadequate accountability for results.

When awarding Government contracts, the Federal Government must strive for an open and competitive process. However, executive agencies must have the flexibility to tailor contracts to carry out their missions and achieve the policy goals of the Government. In certain exigent circumstances, agencies may need to consider whether a competitive process will not accomplish the agency’s mission. In such cases, the agency must ensure that the risks associated with noncompetitive contracts are minimized.

Moreover, it is essential that the Federal Government have the capacity to carry out robust and thorough management and oversight of its contracts in order to achieve programmatic goals, avoid significant overcharges, and curb wasteful spending. A GAO study last year of 95 major defense acquisitions projects found cost overruns of 26 percent, totaling $295 billion over the life of the projects. Improved contract oversight could reduce such sums significantly.

Government outsourcing for services also raises special concerns. For decades, the Federal Government has relied on the private sector for necessary commercial services used by the Government, such as transportation, food, and maintenance. Office of Management and Budget Circular A-76, first issued in 1966, was based on the reasonable premise that while inherently governmental activities should be performed by Government employees, taxpayers may receive more value for their dollars if non-inherently governmental activities that can be provided commercially are subject to the forces of competition.

However, the line between inherently governmental activities that should not be outsourced and commercial activities that may be subject to private sector competition has been blurred and inadequately defined. As a result, contractors may be performing inherently governmental functions. Agencies and departments must operate under clear rules prescribing when outsourcing is and is not appropriate.

It is the policy of the Federal Government that executive agencies shall not engage in noncompetitive contracts except in those circumstances where their use can be fully justified and where appropriate safeguards have been put in place to protect the taxpayer. In addition, there shall be a preference for fixed-price type contracts. Cost-reimbursement contracts shall be used only when circumstances do not allow the agency to define its requirements sufficiently to allow for a fixed-price type contract. Moreover, the Federal Government shall ensure that taxpayer dollars are not spent on contracts that are wasteful, inefficient, subject to misuse, or otherwise not well designed to serve the Federal Government’s needs and to manage the risk associated with the goods and services being procured. The Federal Government must have sufficient capacity to manage and oversee the contracting process from start to finish, so as to ensure that taxpayer funds are spent wisely and are not subject to excessive risk. Finally, the Federal Government must ensure that those functions that are inherently governmental in nature are performed by executive agencies and are not outsourced.

I hereby direct the Director of the Office of Management and Budget (OMB), in collaboration with the Secretary of Defense, the Administrator of the National Aeronautics and Space Administration, the Administrator of General Services, the Director of the Office of Personnel Management, and the heads of such other agencies as the Director of OMB determines to be appropriate, and with the participation of appropriate management councils and program management officials, to develop and issue by July 1, 2009, Government-wide guidance to assist agencies in reviewing, and creating processes for ongoing review of, existing contracts in order to identify contracts that are wasteful, inefficient, or not otherwise likely to meet the agency’s needs, and to formulate appropriate corrective action in a timely manner. Such corrective action may include modifying or canceling such contracts in a manner and to the extent consistent with applicable laws, regulations, and policy.

I further direct the Director of OMB, in collaboration with the aforementioned officials and councils, and with input from the public, to develop and issue by September 30, 2009, Government-wide guidance to:
(1) govern the appropriate use and oversight of sole-source and other types of noncompetitive contracts and to maximize the use of full and open competition and other competitive procurement processes;
(2) govern the appropriate use and oversight of all contract types, in full consideration of the agency’s needs, and to minimize risk and maximize the value of Government contracts generally, consistent with the regulations to be promulgated pursuant to section 864 of Public Law 110-417;
(3) assist agencies in assessing the capacity and ability of the Federal acquisition workforce to develop, manage, and oversee acquisitions appropriately; and
(4) clarify when governmental outsourcing for services is and is not appropriate, consistent with section 321 of Public Law 110-417 (31 U.S.C. 501 note).

Executive departments and agencies shall carry out the provisions of this memorandum to the extent permitted by law. This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.”

Government Contracts Background

Prohibited Export of Mtcr Items and U.S. Government Contracts in the History of U.S. Economic Sanctions Imposed against China

Note: the status of this economic sanction is: Waived

Date of the sanction(s): AUGUST 24, 1993

The Under Secretary of State for International Security Affairs determined that China's Ministry of Aerospace Industry and Pakistan's Ministry of Defense had engaged in missile technology proliferation activities. The finding required the imposition of sanctions against the two entities and all their subsidiaries, divisions, subunits, or successors, denying export licenses for items covered by the Missile Technology Control Regime (MTCR) Annex for two years and the denial of United States government contracts relating to these same items. The finding further imposed such sanctions against Chinese government organizations involved in development or production of electronics, space systems or equipment, and military aircraft.

Sanctions by Authority:

Sec. 73(a)(2)(A) of the Arms Export Control Act, as amended [P.L. 90- 629; 22 U.S.C. 2797(b)(2)(A)]; Sec. 11B(b)(1)(B)(i) of the Export Administration Act of 1979, as amended [P.L. 96-72; 50 U.S.C. App. 2410b(b)(1)(B)(i)]; U.S. Department of State Public Notice 1857 (58 F.R. 45408)

Occasion(s) Detailed

See November 1, 1994, for waiver of sanction

Note: Based on the China: U.S. Economic Sanctions Report.

Government Contracts