TABLE
OF CONTENTS
Federal Procurements for the Transport and Subsequent
Disposal of Hazardous Waste
Transferring Use of Federal Real Property: A Challenge
to Privitization
ARTICLES
Federal Procurements for the Transport and
Subsequent Disposal of Hazardous Waste
This Article examines federal procurement contracts for the disposal of hazardous waste. It provides a brief overview of the relevant environmental requirements related to hazardous waste and the basics of general procurement law. The Article further discusses the obligations of the Government as a generator of hazardous waste and potential liabilities under the environmental laws. The Article further provides an in-depth examination of cases involving procurement contracts for the disposal of hazardous waste and discusses both contract formation and administration issues. Finally, the Article suggests how federal agencies can protect their interests when contracting for hazardous waste disposal services.
Environmental statutes are relatively new compared to the procurement laws; the two often do not mesh well together. Those contracting for the transport and subsequent disposal of hazardous waste may not have environmental expertise, and the current federal procurement system offers no particular guidance. Consequently, an agency that generates hazardous waste may become aware of its CERCLA and RCRA responsibilities only after incurring extensive financial liability for the environmentally careless acts of another entity somewhere down the procurement chain. An agency can, however, take proactive action at each step of the procurement process to protect itself from such liability. Agencies that take greater care in procuring hazardous waste disposal services per the suggestions in this article will reduce procurement costs and the frequency of environmental mishaps that they and their contractors cause. As a result, society as a whole will reap the rewards of reduced financial waste of federal agencies and enjoy a cleaner and safer environment.
Transferring the Use of Federal Real
Property: A Challenge to Privitization
This Article uses a fictional scenario to discuss the various laws, regulations, and procedures that confront the practitioner involved in the transfer of federal real property to the private sector. The Article first discusses the transfer of federal real property to the private sector authorized under the Federal Property and Administrative Services Act of 1949 (FPASA) and related statutes. It then contrasts this traditional property disposal process with the plethora of new laws establishing the basic requirements for implementing approved military base realignments and closures (BRAC) inside the continental United States. The Article next examines the significant environmental concerns dominating the disposal of federal property, focusing on the potential pitfalls in the property transfer and leasing process, and their effect on privatization efforts. After a brief examination of other relevant issues, the Article concludes that the multiple and sometimes conflicting goals inherent in the disposal of federal property present the practitioner with a daunting task requiring a thorough understanding of the applicable laws and regulations.
Scanwell Plus: Challenging the
Propriety of a Federal Agency’s Decision to Use a Federal Grant and Cooperative
Agreement
This Article examines federal grants and cooperative agreements from the position of a potential contractor. This Article summarizes the difference between procurement contracts and domestic assistance vehicles and examines the standards of standing for a disappointed contractor that wants to challenge the award of a federal grant or cooperative agreement by a federal agency. The Article reviews the standard set out in Scanwell and discusses the analyses of the Third Circuit and the D.C. District Court. The Article proposes a two-step process for courts to use in reviewing a domestic assistance challenge on the merits. The author proposes that the court should: (1) examine the principal purpose behind the agency use of the assistance vehicle; and (2) determine whether the transaction is consistent with eh agency’s authority to issue domestic assistance. The author’s conclusion is that this standard of review is consistent with current agency interpretation.
NOTES
Competing Relators and Competing Objectives under
the False Claims Act: Barring Subsequent Claims Should Look Beyond the Plain
Language of Section 3730(b)(5)
Under the False Claims Act, the phrase “facts underlying the pending action” is susceptible to two interpretations. One interpretation is that section 3730(b)(5) should bar only action alleging identical facts; the other interpretation is that section 3730(b)(5) should bar actions that allege the same material or essential facts. This Note analyzes the identical facts and material facts tests and suggests that courts should adopt an identical facts test. The Note briefly traces the history of the qui tam provisions and the attendant theme of identifying the intended beneficiaries of the qui tam provisions. The Note reviews the four cases that have addressed section 3730(b)(5) and analyzes the material facts and identical facts tests. The author concludes the Note by advocating an identical facts test.
BOOK REVIEWS
Contract Disputes Act: Annotated by Robert T. Peacock and
Peter D. Ting, Federal Publications, Inc. 1998
According to Professor Schooner, no other effort comes close to the breadth and depth of analysis of the CDA’s workings and intricacies; moreover, the authors’ credibility makes this a reliable, authoritative text. Administrative Judges Robert T. Peacock and Peter D. Ting offer decades of CDA litigation and BCA dispute resolution experience. Judge Peacock, currently Vice Chairman of the Corps of Engineers Board of Contract Appeals, previously served as both the Legal Assistant to the Chairman and a Trial Examiner of the Armed Services Board of Contract Appeals. Judge Ting joined the ASBCA in 1983, after an illustrious career litigating for the General Services Administration.