Regulatory controls as barriers to entry in government procurement

Abstract

Until a decade ago, attorneys expert in government contracts occupied a somewhat sleepy backwater in the landscape of legal practice in the United States. 'Procurement law' was largely the province of relatively obscure legal boutiques. Elite firms of the private bar commonly regarded government contracts matters as arcane annoyances to be shunned rather than promising business opportunities to be grasped. Prestigious careers in corporate dealmaking lured the best students in America's leading law schools. By contrast, few law review editors showed an abiding desire to spend a professional lifetime navigating companies through the labyrinth of federal procurement statutes and regulations. Today it is exceptional to find a major law firm without a government contracts department. 2 Although many areas of federal regulatory practice such as antitrust enforcement waned in the 1980s, government contracts became a lucrative boom town of counselling and litigation. Membership in the American Bar Association's Section of Antitrust Law fell by almost one-third from 1980 to 1990, but the ABA's Section of Public Contract Law grew by over 50 percent. Headhunters scoured the legal community for lawyers who could claim to have once read a government contract. Despite a general slump in current demand for lawyers skilled in corporate and commercial law, efforts by private law firms and government agencies to recruit procurement law specialists are thoroughly robust. The modern transformation of the government contracts legal practice stems from a stunning expansion in the 1980s of the regulatory controls by which Congress and major federal purchasing agencies seek to oversee the conduct of government contractors. Virtually every year of the past decade has yielded dramatic adjustments in the federal procurement regulatory scheme, particularly in public governance structures designed to motivate suppliers of goods and services for national defense? Most striking of all, the regulatory upheaval has featured extraordinary, unprecedented emphasis