Procurement Policy Flashcards

Question

Mayes v. Biden - Facts

Answer 1

- 9th Cir - EO 14042: Ensuring Adequate COVID Safety Protocols for Federal Contractors: All federal contractors have to ensure that all employees are vaccinated against COVID - nexus argument - actually pretty tight (close relationship between vaccines + improving efficiency, designed to keep workplace open)

Answer 2

- Says MQD does NOT apply b/c Pres is not an agency -> FPASA specifically delegated power to Pres, not the agency -> Democratic accountability – Pres doesn’t have the same problems as agency (court analyzes why SCOTUS did this, addressing accountability issues) -> Court says Pres is the most democratically accountable officer in the gov - also says EO would w/stand MQD even if it applied -> reasoning MQD is focused on expansion of REGULATORY authority, vs FPASA deals w/ proprietary authority -> also reasons not transformative b/c not nearly as big as other things previous Pres' have done using this same authority (anti-discrimination conditions, wage and price controls) -> added rationale that Congress reenacted FPASA in 2002, after lots of big Presidential moves - assumption that Congress is aware of interpretations of statutes -> assume by reenacting without making changes, Congress had been okay with how it was being used (vs TX had used this to say nothing changed in 2002, so the original reasoning for passing the law is what we should look at)

Answer 3

- after this, wouldn’t want to bring an MQD challenge to a FPASA move in the 9th Circuit – they’re saying almost anything goes as long as it’s consistent with Constitution + Procurement Act + economy and efficiency

Answer 4

- says the EO is “reasonably related” (4th Cir test) and has a “sufficiently close nexus” (Kahn) to efficiency goal of FPASA - Analogy to Biden v. Missouri (not a FPASA case): "Procurement Act is similar to the statutory text at issue in Biden v. Missouri. In Missouri, the Supreme Court held that language authorizing the Secretary of Health and Human Services to impose conditions he “finds necessary in the interest of . . . health and safety” was adequate authorization to impose a vaccination requirement on the employees of facilities that receive Medicare and Medicaid funds" - Furthermore, This statute does not present the worry of Congress hiding “elephants in mouseholes.” (concept of Congress creating elephant hole, not a mouse hole) - "We reject these invitations to adjudicate slippery-slope hypotheticals (by other circuit courts)… In our system of government, courts base decisions not on dramatic Hollywood fantasies, . . . but on concretely particularized facts developed in the cauldron of the adversary process and reduced to an assessable record.”

Answer 5

- disclosure requirement for contractors - requires contracting officers to take into account (when awarding contractors) the history of labor & employment law violations when making assessment whether bidder is responsible party -> contracting officers can only award contractors to responsible bidders -> before this, responsible just meant whether or not you actually had the necessary equipment, etc.

Answer 6

1) Contractor performance: Contractors that consistently adhere to labor laws are more likely to have workplace practices that enhance productivity and increase the likelihood of timely, predictable, and satisfactory delivery of goods and services to the Federal Government. 2) Procurement System: Helping executive departments and agencies (agencies) to identify and work with contractors with track records of compliance will reduce execution delays and avoid distractions and complications that arise from contracting with contractors with track records of noncompliance.

Answer 7

Only after everyone had fallen in love with the policy did people realize no easy way to coordinate inquiries about contracting violations agencies were required to check - Enforcement databases not interoperable – to make a list of all violations, would need to run separate inquiries at OSHA, NLRB, Wage and Hour Division, violations of state law - No methodology for ensuring that a company’s name was consistently entered in the same way - If name was misspelled, or misunderstanding re spelling of company’s name, couldn’t consistently get all of the violations Whole new procedure would need to be implemented by contracting officers (tens of thousands across fed gov) -Working on a system to train and support them -Had to be done without any money because Congress refused to appropriate funds for this purpose

Answer 8

- District Court case - EO violates First Amendment: Disclosure requirement is compelled speech - not really a FPASA challenge, but ct critiques nexus anyway - argues ev gov relies on only takes into account serious violations, vs the disclosures require you to report more than that -> court thinks no compelling interest

Answer 9

- opened admin up to attack in litigation - but done for practical reasons -> Concern of how much time there’d be between the conduct and the ultimate determination -> Didn’t want to be incentivizing continuing litigation so contractors would avoid final determinations -> Wanted to encourage remedial conversations – wanted to incentivize contractors cutting good deals with the agencies -> Nowhere in the executive order did it say contractors who had these violations could not get gov contracts, just making it part of the procurement determination – not definitively cutting anyone out of the procurement situation

Answer 10

- MQD -> Mayes response of elephant-sized hole -> BUT potential SCOTUS response of non-delegation doctrine (Congress can't create elephant-sized holes) - always concern about getting a decision that could knock out the anti-discrimination piece, although Title VII diminishes this a bit - Prof seemed to indicate could theoretically run into the TX leg history args

Answer 11

- came out at beginning of Biden admin, requires fed contractors to disclose their emissions of GHGs + have a plan to reduce those emissions - Prof said no litigation yet, but very likely - q of whether GHG disclosures = controversial + stigmatizing -> Prof said admin very concerned about a 1st Am challenge similar to Fair Pay Safe Workplaces

Answer 12

- there have been calls for Biden to require fed contractors to cover travel costs for employees in states that have restricted abortion access - Prof noted economy + efficiency arguments might be a challenge

Answer 13

- Prof basically noted it's a super important area, but it is now in flux because of all the decisions we looked at

Answer 14

- Prof framed this as another way that gov's purchasing power can be used to advance policy - usually thought of in terms of nat sec (power to harness output of defense contractors to ensure country can respond to foreign threats) -> this was original impetus of statute in 1950 (gave Pres power to prioritize orders from gov) - if Cong appropriates the funds, DPA gives Pres authority to incentivize private companies to produce more of the stuff that Pres thinks gov needs to buy

Answer 15

- possibility of using in energy sector - emergency preparedness + response to natural disasters -> was important in pandemic response (able to prioritize gov orders on things like masks + vaccines) - possibly also a tool in combatting climate crisis

Answer 16

- Inflation Reduction Act –> Congress appropriated $500 million for green energy sector in DPA investment - Biden Admin could use this to accelerate production of electric vehicles + think also charging - some advocating for aggressive use to jumpstart renewable energy sector -> gov could announce it will buy certain # of solar panels, green cars, etc. at a specified price if buyers can't be found -> cos would then have guaranteed buyers

Procurement Policy Flashcards

(40 cards)