The Antitrust Government Contracts Handbook by William E. KovacicReview by: James F. NaglePublic Contract Law Journal, Vol. 20, No. 4 (Summer 1991), pp. 643-645Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/25755645 .

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Book Review

Reviewed by James F. Nagle*

The Antitrust Government Contracts Handbook

William E. Kovacic, Principal Author

Published by the Section of Antitrust Law, American Bar Association, 1990.

When I received this book to review and saw that it was by the Section of Antitrust Law, I worried that it might have been writ

ten by experts in antitrust matters, but with little or no familiarity in government contracts. I feared it might see the forest, but not

the individual trees. My concerns were obliterated when I got to

the cover page and saw that the principal author of the pamphlet is William E. Kovacic, a professor at George Mason University School of Law, and a very highly regarded government contracts

expert and member of this Section. The foreword and preface to

the book also mention that other Section stalwarts, such as John Chierichella and Roy S. Mitchell, also participated. This expert

straddling of the two disciplines has produced a very worthwhile

handbook.

Over the last twenty years we have seen the criminalization of

the government procurement process. The authors have prepared this pamphlet with that in mind, because antitrust laws, dating back

a hundred years or so, are some of the most effective arrows in

the government's quiver of enforcement techniques. As the authors

note, modern antitrust policy applauds vigorous efforts to defeat

rivals by offering lower prices and better goods and services. But

how far contractors can go and not run afoul of the antitrust laws

is the purpose of this book.

*James F. Nagle practices law with Seattle's Oles, Morrison & Rinker. He

received his L.L.M. and S J.D. in Government Contracts from the National Law Center at George Washington University.

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Public Contract Law Journal

The pamphlet is divided into four chapters. The first, "The

Antitrust Enforcement Process," explains the essential ingredients of the antitrust enforcement process. Besides such generic reme

dies as criminal and civil enforcement, the pamphlet discusses such

remedies unique to government contracts as suspension and

debarment, certification obligations, such as the certificate of

independent price determination contained in FAR 52.203-2, and

such private enforcement remedies as bid protests and qui tarn

actions. The chapter concludes with a discussion of the various

defenses and exemptions to antitrust actions, such as the Defense

Production Act of 1950, the Small Business Act and the National

Cooperative Research Act of 1984, and the allowability of anti

trust-related legal fees under the FAR cost principles.

Chapter 2 deals with the general principles of antitrust law, and is a concise primer on the subject. It discusses such activities as

horizontal price fixing, allocations of customers and markets and

group boycotts. This chapter, indeed the entire pamphlet, is made

especially valuable because of the numerous case citations, includ

ing wherever possible, citations specifically to government contract cases.

Chapter 3 deals with antitrust issues facing government contrac tors. Here, the authors take the principles discussed in Chapter 2 and apply them to very specific situations, such as teaming agree ments and joint ventures, takeovers by foreign companies, pred atory pricing or buying-in, and restrictive specifications.

Chapter 4 and the three appendices to the book deal with anti trust compliance programs. Here, the authors stress that any such antitrust compliance program must begin with an antitrust inven

tory of the contractor, its organization and practices, by antitrust counsel. The contractor must then develop a written compliance policy statement. Appendix 1 is a checklist for establishing an anti trust compliance program, Appendix 2 is a sample management statement and compliance program, which can be tailored for the individual contractors. Appendix 2 is a six-page document which sets out the program's goals and explains basic principles and stat

utes, along with the consequences of violations, and specific rules and guidelines. It is unlikely that employees would take the time to read such a document; that is why Appendix 3, "Antitrust Do's and Don'ts," is essential. It is a one-page list of nine do's and don'ts

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Book Review

designed to protect contractors from running afoul of the anti trust principles.

The book is a very worthwhile, easy-to-read guide through a

subject increasingly intertwined with government contracts and

likely to remain so.

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