The Twenty-Third Major Frank B. Creekmore Lecture: Where We Came From and Where We May Be Going

Author:Michael J. Davidson
Position:Currently serves as the Chief, Procurement and Appropriations Law Section, Immigration and Customs Enforcement (ICE)
Pages:263-298
 
FREE EXCERPT
2012] TWENTY-THIRD CREEKMORE LECTURE 263
TWENTY-THIRD MAJOR FRANK B. CREEKMORE LECTURE:
WHERE WE CAME FROM AND WHERE WE MAY BE GOING*
DR. MICHAEL J. DAVIDSON
* This is an edited transcript of a lecture delivered on November 17, 2011, by Dr. Michael
J. Davidson, to attendees of the Government Contract and Fiscal Law Symposium,
members of the staff and faculty of The Judge Advocate General’s Legal Center and
School, their distinguished guests, and officers of the 60th Judge Advocate Officer
Graduate Course at The Judge Advocate General’s Legal Center and School,
Charlottesville, Virginia.
The Major Frank B. Creekmore Lecture was established on January 11, 1989. The
lecture is designed to assist The Judge Advocate General’s School in meeting the
educational challenges presented in the field of government contract law.
Frank Creekmore graduated from Sue Bennett College, London, Kentucky, and
from Berea College, Berea, Kentucky. He attended the University of Tennessee School of
Law, graduating in 1933, where he was inducted into the Order of the Coif for scholarly
achievement. After graduation, Mr. Creekmore entered the private practice of law in
Knoxville, Tennessee. In 1942, he entered the Army Air Corps and was assigned to
McChord Field in Tacoma, Washington. From there, he participated in the Aleutian
Islands campaign and served as the Commanding Officer of the 369th Air Base Defense
Group.
Captain Creekmore attended The Judge Advocate General’s School at the University
of Michigan in the winter of 1944. Upon graduation, he was assigned to Robins Army
Air Depot in Wellston, Georgia, as contract termination officer for the southeastern
United States. During this assignment, he was instrumental in the prosecution and
conviction of the Lockheed Corporation and its president for a $10 million fraud related
to World War II P-38 Fighter contracts. At the War’s end, Captain Creekmore was
promoted to the rank of major in recognition of his efforts.
After the war, Major Creekmore returned to Knoxville and the private practice of
law. He entered the Air Force Reserve in 1947, returning to active duty in 1952 to
successfully defend his original termination decisions. Major Creekmore remained active
as a reservist and retired in the rank of lieutenant colonel in 1969. He died in April 1970.
Michael J. Davidson currently serves as the Chief, Procurement and Appropriations
Law Section, Immigration and Customs Enforcement (ICE). In this position, he
supervises nine attorneys and three support staff in three locations. His section is
responsible for providing contract, fiscal and administrative law advice and support to
ICE, including protests before the Government Accountability Office, and litigation
before the Court of Federal Claims and Civilian Board of Contract Appeals.
Additionally, the section advises ICE on alien bond breaches and debt collection
matters. The section provides legal support and advice to the ICE Suspension and
Debarment Division. ICE’s Suspension and Debarment Program has progressed from 7
actions in FY 08 to over 400 in FY 11.
Prior to ICE, Mr. Davidson was employed as a litigation and supervisory attorney at
the Department of the Treasury for six years. He is a retired Army judge advocate,
retiring as a lieutenant colonel after twenty-one years of active duty. While an Army
JAG, he was a Special Trial Attorney with the Department of Justices’s Commercial
Litigation Branch (Civil Fraud) specializing in civil False Claims Act litigation, a Special
Assistant U.S. Attorney in Arizona specializing in defense procurement fraud and public
264 MILITARY LAW REVIEW [Vol. 211
If history is a gauge there has always been procurement fraud and
there will always be procurement fraud. From the birth of the nation,
there have been contractors who have put personal profit before patriotic
fervor and have defrauded the military. Unfortunately that misconduct
continues today as our nation is engaged in two wars in Southwest Asia.
In the procurement community there are two competing forces,
corruption control on one side and commercial/business-like acquisition
reform advocates on the other. The corruption control forces want greater
integrity prosecutions; and a Branch Chief in the Army Procurement Fraud Division
responsible for the coordination of legal remedies for contract fraud and for the
development and presentation of contractor fraud and performance failure cases to the
Army Suspension and Debarment Official. In addition, he also served as the Chief of
Contract & Administrative Law at Army Component Central Command, as a litigation
attorney in the Army’s Litigation Center, and as a military prosecutor at Fort Hood,
Texas.
Mr. Davidson graduated from the U.S. Military Academy in 1982. He received his
law degree from the Marshall-Wythe School of Law, College of William & Mary in
1988, where he was a member of the Order of the Coif and an Editor & staff member of
the William & Mary Law Review. Mr. Davidson received a LL.M. in Military Law from
the Judge Advocate General’s School in 1994 and a second LL.M. in Government
Procurement Law, with highest honors, in 1998 from the George Washington University
School of Law, where his thesis discussed Individual Surety Bond Fraud. Finally, Mr.
Davidson was awarded the Doctor of Juridical Science (SJD) degree in 2007 from
George Washington University School of Law in Government Procurement Law. His
doctoral dissertation focused on defense procurement fraud.
Mr. Davidson is the author of two books: A Call To Action: Re-Arming The
Government In The War Against Defense Procurement Fraud (Vanderplas Publishing,
2009); A Guide to Military Criminal Law (Naval Institute Press, 1999) and over forty
legal articles. His procurement fraud-related articles include: The ICE Suspension and
Debarment Program Heats Up, PROC. LAW. 1 (Fall 2010) (co-author); Show Me The
Money! Maximizing Agency Recoveries In Fraud Cases, J. OF PUB. INQUIRY 1
(Fall/Winter 2009-2010); VFATA: Virginia’s False Claims Act, 3 LIBERTY U. L. REV. 1
(Spring 2009); The Government Knowledge Defense to the Civil False Claims Act: A
Misnomer By Any Other Name Does Not Sound As Sweet, 45 IDAHO L. REV. 41 (2008);
Combating Small-Dollar Fraud Through a Reinvigorated Program Fraud Civil Remedies
Act, 37 PUB. CONT. L.J. 213 (2008); Protest Challenges to Integrity-Based Responsibility
Determinations, 14 FED. CIR. BAR J. 473 (2005); Governmental Responses to Elder
Abuse And Neglect in Nursing Homes: The Criminal Justice System and the Civil False
Claims Act, 12 ELDER L.J. 327 (2004); Applying the False Claims Act to Commercial IT
Procurements, 34 PUB. CONT. L.J. 25 (2004), reprinted at 38 TAXPAYERS AGAINST
FRAUD Q. REV., July 2005, at 105; Claims Involving Fraud: Contracting Officer
Limitations During Procurement Fraud Investigations, ARMY LAW., Sept. 2002, at 21;
Procurement Fraud Division Note, The Miscellaneous Receipts Statute and Permissible
Agency Recoveries of Monies, ARMY. LAW., Mar. 2001, at 35; 10 U.S.C. 2408: An
Unused Weapon in the Procurement Fraud Wars, 26 PUB. CONT. L.J. 181 (Winter 1997);
The Joint Defense Doctrine: Getting Your Story Straight in the Mother of All Legal
Minefields, ARMY LAW., June 1997, at 17.
2012] TWENTY-THIRD CREEKMORE LECTURE 265
government oversight and regulation, and a strong anti-fraud legal
regime. In contrast, there are those who want to procure or sell goods and
services as efficiency and inexpensively as possible, with little regulation
and oversight. Beginning during the Civil War, the interplay between
these two forces influenced the development of our current body of law,
and the tug and pull between them has been particularly pronounced in
modern times.
First, I will review the history of procurement fraud, primarily
focusing on the military as victim and the development of the current
fraud control regime. Second, I will discuss three current issues: (1) the
disturbing involvement of uniformed members of the military in
procurement fraud; (2) the need for a sustained source of anti-fraud
funding; and (3) the President’s recent draft Executive Order attempting
to merge campaign finance reform with the procurement fraud regime.
I. Where We Came from: A History of Procurement Fraud and the
Development of a Fraud Control Regime
A. In The Beginning . . . There Was Fraud
Procurement fraud has plagued the military since the birth of our
nation. During the Revolutionary War, the Continental Army suffered
from shoddy supplies, war material, and foodstuffs delivered by
unscrupulous contractors. Axes arrived without heads, food was inedible,
blankets and shoes were substandard, and gunpowder unusable.1 General
George Washington exclaimed: “These murderers of our cause ought to
be hunted down as pests of society and the greatest enemies to the
happiness of America. I wish to God that the most atrocious of each state
was hung . . . upon a gallows five times as high as the one prepared for
Haman.”2
1 JAMES F. NAGLE, HISTORY OF GOVERNMENT CONTRACTING 19 (2d ed. 1999) (citation
omitted).
2 William P. Barr, Foreword, Seventh Survey of White Collar Crime, 29 AM. CRIM. L.
REV. 169, 171 (1992) (citing MARSHALL CLINARD, CORPORATE CORRUPTION: THE ABUSE
OF POWER 69 (1990)).

To continue reading

FREE SIGN UP