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

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)).