Amicus Curiae Brief — Louis Ciminelli, Petitioner v. United States, et al.

Supreme Court briefSep 6, 2022

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No. 21-1170

IN THE

Supreme Court of the United States

————

LOUIS CIMINELLI,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

————

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

————

BRIEF FOR AMICUS CURIAE THE

ASSOCIATED GENERAL CONTRACTORS OF

AMERICA, INC. IN SUPPORT OF PETITIONER

————

LEAH PILCONIS

JORDAN HOWARD

THE ASSOCIATED GENERAL

CONTRACTORS OF

AMERICA, INC.

2300 Wilson Blvd., Suite 300

Arlington, VA 22201

ADRIAN L. BASTIANELLI, III

Counsel of Record

THOMAS J. CURRAN

ROBERT H. BELL

DORIS D. SHORT

PECKAR & ABRAMSON, P.C.

1325 Avenue of the

Americas, 10th Floor

New York, NY 10019

(212) 382-0909

tcurran@pecklaw.com

Counsel for Amicus Curiae

September 6, 2022

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

INTERESTS OF THE AMICUS CURIAE .........

INTRODUCTION AND

SUMMARY OF ARGUMENT .........................

ARGUMENT ........................................................

I. The Application Of The Right-To-Control

Theory Risks Criminalizing Important

Business Practices In The Government

Contracting Process And Is Contrary To

Existing Precedent ....................................

II. Pre-RFP Interactions Between Government

Contracting Officials And Industry Are

Routine And Beneficial To Both The

Government And Industry .......................

A. The Federal Government Has Codified Early Pre-RFP Communications

In The FAR And Related Guidance ....

B. State Procurement Officials Employ

Similar Policies Promoting Pre-RFP

Communications With Industry .........

CONCLUSION ....................................................

(i)

TABLE OF AUTHORITIES

CASES

Page(s)

Advanced American Construction, Inc. v.

United States,

111 Fed. Cl. 205 (Ct. Fed. Cl. 2013) .........

Carpenter v. United States,

484 U.S. 19 (1987) .....................................

Cleveland v. United States,

531 U.S. 12 (2000) ................................... 6, 7, 10

De La Cruz v. Caddell Dry Dock &

Repair Co., Inc.,

21 N.Y.3d 530 (2013) ................................

Kelly v. United States,

140 S. Ct. 1565 (2020) ............................. 6, 7, 10

McDonnell v. United States,

579 U.S. 550 (2016) ...................................

McNally v. United States,

483 U.S. 350 (1987) ...................................

6, 7

Skilling v. United States,

561 U.S. 358 (2010) ...................................

United States v. Binday,

804 F.3d 558 (2d Cir. 2015) ...................... 2-3, 7

United States v. Finazzo,

850 F.3d 94 (2d Cir. 2017) ........................

United States v. Percoco,

13 F.4th 158 (2d Cir. 2021) .......................

United States v. Sadler,

750 F.3d 585 (6th Cir. 2014) .....................

United States v. Weimert,

819 F.3d 351 (7th Cir. 2016) .....................

iii

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Yates,

16 F.4th 256 (9th Cir. 2021) .....................

STATUTES AND REGULATIONS

18 U.S.C. § 1343 ...........................................

Federal Acquisition Regulation, 48 C.F.R:

subpart 1.1 ................................................

§ 1.102(d) ...................................................

§ 1.102-2(a)(4) ...........................................

part 10 ....................................................... 13, 15

§ 10.001 .....................................................

§ 10.001(a) .................................................

§ 10.002 .....................................................

§ 10.002(b) .................................................

part 15 ....................................................... 12, 15

§ 15.201(a) .................................................

§ 15.201(b) .................................................

§ 15.201(c) ................................................. 13, 14

§ 15.203 .....................................................

N.Y. State Finance Law § 139-j ...................

N.Y. State Finance Law § 139-j(f)................

N.Y. State Finance Law § 139-k ..................

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Page(s)

AGC of America, AGC Federal Contractors

Conference, https://fedcon.agc.org/ (last

visited Sept. 1, 2022) ................................

Caltrans, Caltrans 18th Annual Procurement and Resource Fair, https://www.

dgs.ca.gov/PD/Events/Page-Content/Proc

urement-Division-Events-List-Folder/Cal

trans-18th-Annual-Procurement-and-Re

source-Fair (last visited Sept. 1, 2022) ....

City & State NY, Government Procurement

Conference, https://www.cityandstateny.

com/feature/2022-Government-Procurem

ent-Conference-/?oref=csny-events-upcom

ing (last visited Sept. 1, 2022) ..................

Daniel I. Gordon, Office of Management

and Budget, “Myth-Busting”: Addressing

Misconceptions to Improve Communication with Industry during the Acquisition

Process, February 2, 2011, https://www.

darpa.mil/attachments/OFPPPolicyMemo.

pdf .................................................... 5, 16, 17, 18

Department of the Army, U.S. Army Corps

of Engineers (USACE), Construction

Project Partnering Playbook, April 30,

2022, https://www.publications.usace.ar

my.mil/Portals/76/Users/182/86/2486/EP

%2034-1-1.pdf?ver=A4U9A4U_J8A3oXA

y3qyWLw%3d%3d.....................................

TABLE OF AUTHORITIES—Continued

Page(s)

Department of the Army, U.S. Army Corps

of Engineers (USACE), Phase 1 Draft

Request for Proposal for Galveston District $7 Billion Horizontal Construction

Projects Now Avail-able on SAM.gov,

Jan. 28, 2022, https://www.swg.usace.

army.mil/Media/News-Releases/Artiicle/

2916688/phase-1-draft-request-for-propos

al-for-galnveston-district-7-billion-horizon

tal/ .................................................................

Department of Defense et al., Federal

Acquisition Regulation: Effective Communication Between Government and

Industry, Proposed Rule, 81 FR 85914

(November 2016) .......................................

Department of Health and Human Services, Vendor Communication Plan, April

2020, https://www.hhs.gov/sites/default/

files/hhs-vendor-communication-plan-202

0.pdf ........................................................... 16, 20

Department of Homeland Security, Reverse

Industry Day, https://www.dhs.gov/publi

cation/reverse-industry-day (last visited

Sept. 1, 2022) ..................................................

General Services Administration, How to

Respond to Pre-Award Notices: Knowing

the Details Will Have an Impact, https://

www.gsa.gov/cdnstatic/Pre-Award%20N

otices%20-%20508%20-%2008272021.pdf

(last visited Sept. 1, 2022) ........................

TABLE OF AUTHORITIES—Continued

Page(s)

General Services Administration, Industry

Communications Plan, February 2020,

https://www.gsa.gov/cdnstatic/GSA_Indu

stry_Communications_Plan%20January

%202020_508.pdf ......................................

Government Accountability Office, A Snapshot of Government-Wide Contracting For

FY 2020, June 22, 2021, https://www.gao.

gov/blog/snapshot-government-wide-cont

racting-fy-2020-infographic ......................

Lesley A. Field, Office of Management and

Budget, “Myth-Busting 2”: Addressing

Misconceptions and Further Improving

Communication During the Acquisition

Process, May 7, 2021, https://obamawhite

house.archives.gov/sites/default/files/om

b/procurement/memo/myth-busting-2-ad

dressing-misconceptions-and-further-im

proving-communication-during-the-acq

uisition-process.pdf ................................... 16, 18

Lesley A. Field, Office of Management and

Budget, “Myth-busting 3” Further Improving Industry Communication with Effective

Debriefings, January 5, 2017, https://oba

mawhitehouse.archives.gov/sites/default

/files/omb/procurement/memo/myth-bust

ing_3_further_improving_industry_comm

unications_with_effectiv.pdf................. 4, 16, 17

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Lesley A. Field, Office of Management and

Budget, “Myth-Busting #4” – Strengthening Engagement with Industry Partners

through Innovative Business Practices,

April 30, 2019, https://www.whitehouse.

gov/wp-content/uploads/2019/05/SIGNEDMyth-Busting-4-Strenthening-Engagem

ent-with-Industry-Partners-through-Inn

ovative-Business-Practices.pdf.............. 4, 17, 18

Major Brendan J. Mayer, Encourage Your

Clients To Talk To Offerors: Understanding Federal Acquisition Regulation

15.306, 2016-JAN Army Law. 36

(January 2016) ..........................................

Naval Air Systems Command (NAVAIR),

NAVAIR-Industry Summit Report: A

Catalyst for Improved Competitive Procurement Communications, June 1, 2017,

https://www.navair.navy.mil/sites/g/files/

jejdrs536/files/2018-12/navair-industry_s

ummit_report.pdf ......................................

Ohio Department of Transportation,

Kentucky Transportation Cabinet, Next

Steps Taken To Improve Brent Spence

Bridge Corridor (May 16, 2022), https://

brentspencebridgecorridor.com/next-stepstaken-to-improve-brent-spence-bridge-co

rridor/ ........................................................

Steven W. Feldman, Government Contract

Awards: Negotiation and Sealed Bidding

(December 2021) .......................................

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Tai H. Park, The “Right to Control” Theory

of Fraud: When Deception Without Harm

Becomes a Crime, 43 Cardozo L. Rev. 135

(October 2021) ...............................................

Texas Department of Transportation, CapEX

Central Downtown – Pre-Procurement

Information, https://www.txdot.gov/insidetxdot/division/alternative-delivery/capexcentral-downtown/preprocurement.html

(last visited Sept. 1, 2022) ........................

Tiffany Taylor, Department of Agriculture,

Communicating with Industry, November

6, 2019, https://www.usda.gov/sites/default/

files/documents/spe-memo-communicatingindustry.pdf ....................................................

INTERESTS OF THE AMICUS CURIAE1

The Associated General Contractors of America, Inc.

(“AGC of America”) is a leading trade association in

the construction industry, representing more than

27,000 member firms, including 7,000 of the country’s

leading general contractors, nearly 9,000 specialty

contracting firms, and more than 11,000 service providers and suppliers, engaged in building, heavy, civil,

industrial, utility, and other construction disciplines

for both public and private property owners and developers. AGC of America and its nationwide network of

89 chapters have sought to improve and advance the

interests of the construction industry for over a century.

AGC of America works to ensure the continued success

of the commercial construction industry by advocating

for federal, state, and local measures that support the

industry; providing education and training for

member firms; and connecting member firms with

resources needed to be successful businesses and responsible corporate citizens. AGC of America’s goal is to

serve its members by advancing the profession of

construction and improving the delivery of the industry’s

services consistent with the public’s interest.

The construction industry (“Industry”) has a profound

interest in the case before the Court as it presents a

real risk of broad-brush criminalization of the longstanding practice whereby government contracting

officials (and those acting as their agents on prospective publicly-funded projects) routinely consult with

members of the general contracting community prior

Pursuant to Rule 37.6, counsel for amicus curiae states that

no counsel for a party authored this brief in whole or in part, and

no counsel or party made a monetary contribution intended to

fund the preparation or submission of this brief. The parties have

provided their written consent to the filing of this brief.

to the issuance of a Request for Proposal (“RFP”) or

formal bid processes. Informal discussions with Industry

are initiated by government procurement personnel

prior to any formal bid processes in the ordinary

course of a public authority’s efforts to discern market

conditions, best formulate the parameters of the prospective project, and serve to alert Industry members

of the potential project being considered such that

interested firms may begin to plan and prepare for

any participation they may seek. This practice is so

well-established and beneficial, especially for largescale public projects, that it is codified in the Federal

Acquisition Regulation (“FAR”) and is an encouraged

part of the pre-RFP process for federal procurements.

AGC of America, as amicus curiae, submits this

brief to raise the Court’s awareness of this proper

and desirable business practice, to show the actual

economic benefits this practice promotes, and to

demonstrate how such pre-bid contacts are encouraged by existing government policy and are to the real

benefit of the public that funds the projects. AGC of

America submits this brief in support of Petitioner to

the extent that Petitioner urges the rejection of the

right-to-control theory for federal criminal wire fraud

prosecutions.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The right-to-control theory supports criminal prosecutions under federal criminal fraud statutes under

factual scenarios where tangible economic harm or

damage to property interests cannot be shown, much

less proven beyond a reasonable doubt, as part of the

underlying conduct constituting the scheme to defraud.

See United States v. Binday, 804 F.3d 558, 576-77 (2d

Cir. 2015) (“it suffices to prove that the defendants’

misrepresentations deprived the insurers of economically

valuable information that bears on their decisionmaking”). The right-to-control theory enables the prosecution to meet its burden to prove property/economic

harm without any evidence of actual, identifiable money

or property loss. Instead, under the right-to-control

theory, the prosecution need only prove that misrepresentations or omissions acted to deprive a victim of

the intangible “right to control” its property interests.

See id.; United States v. Percoco, 13 F.4th 158, 170 (2d

Cir. 2021); Pet. App. 16a-17a. Insofar, however, that

the fraudulent misrepresentations or omissions for

which the Petitioner was convicted occurred as part of

pre-RFP discussions between a member of Industry

and a public authority and/or its agent (and thereby

influenced the constitution of the RFP that was ultimately issued to Petitioner’s purported benefit), the

right-to-control theory risks criminalization of an established, non-criminal process that benefits, not harms,

public authorities, the Industry, and the taxpaying public.

Early communications between government procurement personnel and Industry during the pre-RFP

stage of the contracting process are a normal and

established part of the public contract/procurement

process. The federal government, which spent more

than $665 billion on contracts in fiscal year 2020,2

through the Office of Federal Procurement Policy in

the Office of Management and Budget (“OMB”) has

issued a series of “Myth-Busting” memoranda, which

outline the federal government procurement policy

Government Accountability Office, A Snapshot of GovernmentWide Contracting For FY 2020 (infographic), June 22, 2021,

https://www.gao.gov/blog/snapshot-government-wide-contractingfy-2020-infographic.

favoring these interactions between procurement officers

and Industry and detailing their many benefits, which

the right-to-control theory risks criminalizing.

These communications “create a more responsive

buying process, modernize the acquisition culture,

and deliver greater value to the taxpayer.”3 Pre-RFP

interactions with Industry, moreover, have been codified

by federal and state regulations and are favored by

government contracting officials and their agents.

Early engagement with Industry is used by government contracting officials “[t]o maximize the return on

its acquisition investment and to ensure access to

high-quality solutions.”4 In recent years, “[t]o keep up

with the rapidly accelerating pace of technological

change, a number of agencies have sought better

ways to communicate with industry so they can better

understand the commercial marketplace, attract new

contractors, and encourage current partners to use

new processes and develop, test, and offer more modern

solutions.”5 Government contracting officials also

recognize that pre-RFP interactions with Industry

members are not for the purpose of obtaining

Lesley A. Field, Office of Management and Budget, “MythBusting #4” – Strengthening Engagement with Industry Partners

through Innovative Business Practices, April 30, 2019, at 1,

https://www.whitehouse.gov/wp-content/uploads/2019/05/SIGNE

D-Myth-Busting-4-Strenthening-Engagement-with-Industry-Pa

rtners-through-Innovative-Business-Practices.pdf (“Myth-Busting

#4”).

Lesley A. Field, Office of Management and Budget, “Mythbusting 3” Further Improving Industry Communication with

Effective Debriefings, January 5, 2017, at 1, https://obamawhite

house.archives.gov/sites/default/files/omb/procurement/memo/m

yth-busting_3_further_improving_industry_communications_wi

th_effectiv....pdf (“Myth-Busting #3”).

Myth-Busting #4, at 1.

“impartial advice.” Indeed, the government is specifically “looking for a variety of options from a variety of

sources, each one understandably, and reasonably,

attempting to demonstrate the value of its own

approach.”6

This is common sense. How could any single potential vendor know from its own, unique standpoint and

perspective the full range of what may or may not be

valuable economic information for the public authority

on an upcoming project? That is precisely what the

public contracting officials are gathering and evaluating in the course of preparing their solicitation and

evaluating the bidders.

The right-to-control theory of prosecution of federal

wire/mail schemes to defraud has resulted in great

uncertainty and confusion in the government contracting process. AGC of America’s members, for instance,

are confused as to how to respond to pre-RFP contacts

from government contracting personnel of a type they

had always welcomed as a matter of course and not an

exposure to federal criminal jeopardy. The right-tocontrol theory unfairly exposes members of Industry

to criminal liability for engaging in what is (at most)

an ordinary, longstanding, and routine part of the

public contracting process. This expansion of criminalization of the fraudulent conduct to be reached by

the prosecution through elimination of the requirement of proof of actual, tangible property harm results

in a chilling effect on normal pre-RFP exchanges between

government and Industry that otherwise serve to

Daniel I. Gordon, Office of Management and Budget, “MythBusting”: Addressing Misconceptions to Improve Communication

with Industry during the Acquisition Process, February 2, 2011,

at 5, https://www.darpa.mil/attachments/OFPPPolicyMemo.pdf

(“Myth-Busting #1).

promote the economic interests (cost, timing, scope,

feasibility) involved in important public works projects.

Amicus curiae respectfully urges this Court to reject

the right-to-control theory of prosecution. The dispensing with proof of actual economic harm that is

the essence of the right-to-control theory criminalizes

ordinary business practice and risks the loss of the

actual economic benefits that practice promotes.

ARGUMENT

I. The Application Of The Right-To-Control

Theory Risks Criminalizing Important

Business Practices In The Government

Contracting Process And Is Contrary To

Existing Precedent

“The federal wire fraud statute makes it a crime to

effect (with use of the wires) ‘any scheme or artifice to

defraud, or for obtaining money or property by means

of false or fraudulent pretenses, representations, or

promises.’” Kelly v. United States, 140 S. Ct. 1565,

1571 (2020) (citing 18 U.S.C. § 1343). The Court has

held that the “‘money-or-property requirement of the

latter phrase’ also limits the former” phrase in the

statute, meaning that the wire fraud statute “prohibits only deceptive ‘schemes to deprive the victim of

money or property.’” Id. (quoting McNally v. United

States, 483 U.S. 350, 356, 358 (1987)). To prove a case

under this statute, the Government has to prove not

only “deception, but that an ‘object of their fraud was

property.’”7 Id. (quoting Cleveland v. United States,

The Court has held that the “same analysis” is to be applied

to the mail and wire fraud statutes because they “share the same

language in relevant part.” Carpenter v. United States, 484 U.S.

19, 25 n.6 (1987).

531 U.S. 12, 26 (2000)). The Court has disapproved

of “theories of property rights” that “stray from

traditional concepts of property,” and held that the

applicable criminal statute does not cover conduct

involving the “intangible rights of allocation, exclusion,

and control.” Cleveland, 531 U.S. at 23-24.

In a line of precedent stretching through the case

below, the United States Court of Appeals for the

Second Circuit has endorsed an expansive theory of

prosecution of federal schemes to defraud – the rightto-control theory – that embraces intangible property/

economic harm as satisfying the property element of

the crime and “allows for conviction on ‘a showing that

the defendant, through the withholding or inaccurate

reporting of information that could impact on economic

decisions, deprived some person or entity of potentially

valuable economic information.’” Pet. App. 16a.; see

also United States v. Finazzo, 850 F.3d 94, 105 (2d Cir.

2017) (holding that the “mail and wire fraud statutes

do not require that the property involved in the fraud

be ‘obtainable’”); Binday, 804 F.3d at 576 (“The indictment need not allege, and the government need not

prove, that the specified harms had materialized for

the particular policies at issue or were certain to

materialize in the future.”).

The right-to-control theory removes the core requirement of the statute as outlined by this Court’s

precedent under Kelly, McNally, and Cleveland — that

the object of the scheme is to deprive the victim of

money or property — and permits conviction based on

deception about unspecified information that a party

might consider valuable before transacting. See Tai H.

Park, The “Right to Control” Theory of Fraud: When

Deception Without Harm Becomes a Crime, 43 Cardozo

L. Rev. 135, 138 (October 2021). This wholly subjective

informational deprivation is, at most, intangible harm

and, in any case, not a property interest that Congress

has criminalized or that this Court has recognized as

satisfying the property/economic harm element of the

fraud statute. Moreover, and more problematic, the

right-to-control theory chills valuable informal informational exchange, including the type engaged in as

part of the pre-RFP discussions happening between

public procurement personnel and Industry, which

advance tangible economic interests.

There currently exists a circuit split over the rightto-control theory, with at least two circuit courts of

appeals holding that the “right to control” is “not the

kind of ‘property’ right[] safeguarded by the fraud

statutes.” United States v. Sadler, 750 F.3d 585, 591

(6th Cir. 2014); see also United States v. Yates, 16

F.4th 256, 265 (9th Cir. 2021) (“The accurateinformation theory is legally insufficient. There is no

cognizable property interest in ‘the ethereal right to

accurate information’”). There is good reason for

courts to decline to embrace the right-to-control theory’s

dramatic expansion of the property harm element of

the statute as encompassing intangible interests (including with no actual, identifiable economic damage):

doing so criminalizes otherwise non-criminal conduct

that provides actual, tangible economic value.

In addition, these right-to-control cases are hardly

“models of clarity or consistency.” Skilling v. United

States, 561 U.S. 358, 405 (2010); see also McDonnell v.

United States, 579 U.S. 550, 576 (2016) (raising fair

notice concerns for government theories of criminal

prosecution). The ensuing uncertainty creates ongoing

harm for Industry which relies on the certainty

provided by the guidelines promulgated by federal,

state, and local government contracting officials that

not only permit but favor early information-gathering

contacts with government procurement personnel and

their agents. See United States v. Weimert, 819 F.3d

351, 356 (7th Cir. 2016) (amorphous interpretations

“create[] uncertainty in business negotiations and

challenges to due process and federalism”).

In the case below, the government did not prove any

actual, tangible economic harm, as the “government

offered little evidence that other companies would

have successfully bid for the projects and then either

charged less or produced a more valuable product

absent the fraud.” Pet. App. 20a. Instead, the Second

Circuit re-defined the benefit of the contractual

bargain to which the applicable public entity was

entitled, finding that the “bargain at issue was not the

terms of the contracts ultimately negotiated, but

instead Fort Schuyler’s ability to contract in the first

instance, armed with the potentially valuable economic

information that would have resulted from a legitimate and competitive RFP process.” Pet. App. 21a.

The Second Circuit then found that the economic harm

aspect of the scheme to defraud was met by a theory

that the pre-RFP conversations between Petitioner

and the non-profit involved in the pre-RFP process

resulted in Petitioner relating interests defined by his

perspective, but not all interests that the state subjectively may have found pertinent to the state’s economic

considerations, and that constituted a denial of the

state’s right-to-control. Pet. App. 20a-21a. By criminalizing the ordinary, longstanding practice whereby

public contracting personnel initiate contact with

Industry prior to the formal RFP process, the right-tocontrol theory fails to perceive and account for how

these pre-RFP informal discussions are actually meant

to advance the state’s interest in best formulating a

contemplated RFP through a better understanding of

various Industry members’ subjective views of a

prospective project.

To the extent that Petitioner’s prosecution represents criminalization of otherwise beneficial pre-RFP

conversations between public authorities, their agents,

and Industry, the effort to substitute for real economic

harm through application of the right-to-control theory

has the undesired consequence of criminalizing important

business practices that provide an actual benefit to the

contracting process, as discussed below. It is precisely

the type of “sweeping expansion of federal criminal

jurisdiction” about which this Court has rightly been

suspect. Kelly, 140 S. Ct. at 1574 (quoting Cleveland,

531 U.S. at 24).

II. Pre-RFP Interactions Between Government

Contracting Officials And Industry Are

Routine And Beneficial To Both The

Government And Industry

A. The Federal Government Has Codified

Early Pre-RFP Communications In The

FAR And Related Guidance

An important part of the federal government’s

contracting process, as it is for virtually all public

works procurement,8 is the issuance of RFPs, which,

as a general matter, are documents issued by a buyer

of services to a seller of services, requesting documentation regarding their experience, capabilities,

resources, and related costs, allowing the buyer to

determine which seller is best suited to complete the

In this context, “public works” are generally considered to be

“works paid for by public funds and made for public use or other

benefit.” De La Cruz v. Caddell Dry Dock & Repair Co., Inc., 21

N.Y.3d 530, 538 (2013).

specific assignment required by the buyer. RFPs

are “used in negotiated acquisitions to communicate

Government requirements to prospective contractors

and to solicit proposals.” FAR § 15.203. RFPs generally contain, among other things, the expected terms

and conditions that would apply to the contract and

factors that will be used to evaluate proposals. Id.

Where the buyer is a public entity, well-developed

regulatory and ethical frameworks apply to ensure

that the public entity is safeguarding public funds and

receiving the benefit of its bargain for its public works,

while ensuring a fair and competitive bidding process.

Before the public authority issues a formal request for

proposals from Industry, however, it must formulate

the formal RFP to be issued and governed by the prolix

regulatory standards. For example, an allocation of

public funds for the construction of a bridge must be

carefully planned in order to assure that the public

funds are well-spent and a useful, lasting bridge

results. The public authority entrusted with the task

of getting the bridge constructed well and efficiently

in terms of time and cost must ascertain market

conditions that will apply to the project for which the

RFP will be issued. Included among the variables to

be accounted for in planning and formulating the RFP

are ascertaining the availability of firms with bridgebuilding expertise, the availability of skilled labor, and

the availability of required materials, among other

factors. In order best to understand the market and

formulate the actual RFP for such a project, public

authorities solicit information about market conditions from Industry prior to the issuance of the RFP

itself. This work is done through the solicitation of

information from various market participants, including

from Industry, in the lead-up to the issuance of the

actual RFP. The pre-RFP solicitation of information

is crucial to the success of the RFP itself, and is as a

practical matter perhaps the most critical step in the

public construction process.

The well-developed (and well-known) practice of

proactive pre-RFP information gathering by public

authorities is a recognized practice that has been

codified into formal regulation. Over the last three

decades, the federal government has acted to improve

acquisition and procurement processes involving

federal funds through implementation of changes to

the FAR, including encouraging “an open exchange

between the government and industry in order to

ensure the government received the best value in

negotiated procurements.” Major Brendan J. Mayer,

Encourage Your Clients To Talk To Offerors: Understanding Federal Acquisition Regulation 15.306, 2016JAN Army Law. 36, 37 (January 2016).

Through FAR Part 15, the federal government sets

out the rules for negotiated procurements, including

communications with Industry prior to the receipt of

proposals. Under the FAR, “[e]xchanges of information among all interested parties, from the earliest

identification of a requirement through receipt of proposals, are encouraged.” FAR § 15.201(a); see also

FAR § 1.102(d) (permitting any “strategy, policy or

procedure” that is in the “best interests of the Government” when not prohibited by law or FAR). This early

information exchange can “improve the understanding

of Government requirements and industry capabilities,

thereby allowing potential offerors to judge whether or

how they can satisfy the Government’s requirements,

and enhancing the Government’s ability to obtain

quality supplies and services, including construction,

at reasonable prices, and increase efficiency in proposal preparation, proposal evaluation, negotiation,

and contract award.” FAR § 15.201(b); see also Steven

W. Feldman, Government Contract Awards: Negotiation

and Sealed Bidding, § 6:2 (December 2021).

Early communications between government contracting officials and Industry are considered valuable

informational research governed by FAR Part 10.

Gathering information relating to market conditions

is necessary to “[e]nsure that legitimate needs are

identified and trade-offs evaluated to acquire items

that meet those needs.” FAR § 10.001(a). The “extent

of market research will vary, depending on such

factors as urgency, estimated dollar value, complexity

and past experience.” FAR § 10.002.

Permitted information gathering techniques in the

pre-RFP stage include, among other things, “[c]ontacting

knowledgeable individuals in Government and industry

regarding market capabilities to meet requirements,”

“[p]articipating in interactive, on-line communication

among industry, acquisition personnel, and customers,”

and “[c]onducting interchange meetings or holding presolicitiation conferences to involve potential offerors

early in the acquisition process.” FAR § 10.002(b); see

also FAR § 15.201(c) (permitted techniques for early

information exchange includes industry or small business conferences, public hearings, market research, as

well as one-on-one meetings with potential bidders);

Advanced American Construction, Inc. v. United States,

111 Fed. Cl. 205, 226-27 (Ct. Fed. Cl. 2013) (declining

to find that the government violated FAR § 10.001

through “unreasonable or inadequate” market research

where the contracting official attended small business

conferences and met with eighteen firms to discuss

construction capabilities, among other things). The

benefits provided by the pre-RFP process are comprehensive: they promote the government’s interests

as the “buyer” of services as well as the interests of the

sellers of the services by enabling them to know the

coming need and to plan accordingly.

Discussions and solicitations (initiated by the

government) during the pre-solicitation stage promote

the government’s tangible economic and property

interests by helping “the Government plan and understand market potential, price, delivery, [and] industry

capabilities.”9 Pre-procurement discussions with Industry, moreover, can

identify and resolve concerns regarding the

acquisition strategy, including proposed contract

type, terms and conditions, and acquisition

planning schedules; the feasibility of the requirement, including performance requirements,

statements of work, and data requirements;

the suitability of the proposal instructions

and evaluation criteria, including the approach

for assessing past performance information;

the availability of reference documents; and

any other industry concerns or questions.

FAR § 15.201(c).

Construction – and particularly as concerns large

and complex public works contracting – requires adequate planning for any project RFP to best promote the

public’s interest. The federal government’s policy

favoring the long-established practice of pre-procurement interactions is further outlined in a proposed

new rule, which is expected to be made final in the

near future, that will amend FAR § 1.102-2(a)(4) to

General Services Administration, How to Respond to PreAward Notices: Knowing the Details Will Have an Impact, at 2

https://www.gsa.gov/cdnstatic/Pre-Award%20Notices%20-%2050

8%20-%2008272021.pdf (last visited Sept. 1, 2022).

“specifically state that Government acquisition personnel are permitted and encouraged to engage in

responsible and constructive exchanges with industry,

so long as those exchanges are consistent with existing

laws and regulations, and promote a fair competitive

environment. This revision, coupled with the existing

guidance in the FAR subpart 1.1 and the market

research strategies set forth in FAR part 10, will

better equip Federal acquisition officials with the

information needed to issue high quality solicitations.”

Department of Defense et al., Federal Acquisition

Regulation: Effective Communication Between Government and Industry, Proposed Rule, 81 FR 85914

(November 2016).

The OMB’s series of “Myth-Busting” memoranda

outlines the federal government procurement policy

favoring pre-solicitation interactions between procurement officers and Industry to illuminate current

market information and instructs federal agencies to

develop vendor communication plans. As the OMB

has written:

With expenditures of over $500 billion annually

on contracts and order for goods and services,

the federal government has an obligation to

conduct our procurements in the most effective, responsible, and efficient manner possible.

Access to current market information is critical for agency program managers as they

define requirements and for contracting officers as they develop acquisition strategies,

seek opportunities for small businesses10, and

Official guidance on early Industry-governmental contracting interactions often includes “consideration of small businesses,

including socio-economic sub-categories” to promote availability

of applicable small business and other contracting assistance and

negotiate contract terms. Our industry partners are often the best source of this

information, so productive interactions between

federal agencies and our industry partners

should be encouraged to ensure that the government clearly understands the marketplace

and can award a contract or order for an

effective solution at a reasonable price.11

Subsequent memoranda issued by OMB have

reinforced and strengthened this public policy:

• “Myth-Busting #2” (2012): “Early, frequent, and

constructive engagement with industry leads to

better acquisition outcomes. . . . Together, our

efforts will result in more effective solutions to

the government’s needs and provide a better

value proposition for all of us as taxpayers.”12

• “Myth-Busting #3” (2017): “To maximize the

return on its acquisition investment and to

ensure access to high-quality solutions, the

Federal government must ensure it conducts

set-aside programs, such as programs for historically disadvantaged businesses, women-owned businesses, or veteran-owned

businesses. See, e.g., Department of Health and Human Services

(“HHS”), Vendor Communication Plan, April 2020, at 5,

https://www.hhs.gov/sites/default/files/hhs-vendor-communicationplan-2020.pdf (“HHS Vendor Communication Plan”).

Myth-Busting #1, at 1.

Lesley A. Field, Office of Management and Budget, “MythBusting 2”: Addressing Misconceptions and Further Improving

Communication During the Acquisition Process, May 7, 2021, at

1, 3, https://obamawhitehouse.archives.gov/sites/default/files/om

b/procurement/memo/myth-busting-2-addressing-misconceptionsand-further-improving-communication-during-the-acquisitionprocess.pdf (“Myth-Busting #2”).

productive

partners.”13

interactions

with

its

industry

• “Myth-Busting #4 (2019): “The purpose of this

memorandum is to improve awareness of

vendor engagement strategies that Federal procurement thought leaders are using to create a

more responsive buying process, modernize the

acquisition culture, and deliver greater value to

the taxpayer.”14

These memoranda set forth, and resolve, various misconceptions about the propriety of pre-bid interactions

between government procurement officials and Industry

members, and provide guidance with respect to the

following topics, among others: (1) one-on-one meetings

with potential vendors;15 (2) Industry conferences;16

(3) obtaining general market information, in addition

to information regarding technical specifications;17

Myth-Busting #3, at 1.

Myth-Busting #4, at 1.

Myth-Busting #1, at 5 (“Prior to the issuance of the

solicitation, government officials – including the program manager,

users, or contracting officer – may meet with potential offerors to

exchange general information and conduct market research

related to an acquisition. . . . There is no requirement that the

meetings include all possible offerors, nor is there a prohibition

on one-on-one meetings.”).

Id., at 9 (“Well organized industry days, as well as presolicitation and pre-proposal conference, are valuable opportunities for the government and for potential vendors – both

prime contractors and subcontractors, many of whom are small

businesses.”).

Id. (“The technical requirements are only part of the

acquisition; getting feedback on terms and conditions, pricing

structure, performance metrics, evaluation criteria, and contract

(4) the benefits to early pre-RFP communications;18

and (5) timing for pre-RFP communications.19

Official federal government policies note that the

information gathering and exchange during the presolicitation context is different from concerns that

might be raised during the post-solicitation period. In

these early communications, the “government is not

looking for impartial advice from one source, but is

instead looking for a variety of options from a variety

of sources, each one understandably, and reasonably,

attempting to demonstrate the value of its own

approach.”20 Simply, there is official recognition that

pre-procurement communications are both appropriate

and desired for how they advance the government’s

(and thereby the public’s) actual interests. Importantly,

it is clearly understood that the information provided

will not be “impartial,” much less address all the

government’s potential economic interests, but will

necessarily be provided through the prism of the views

and experiences of the respective Industry members

solicited.

administration matters will improve the award and implementation process.”)

Myth-Busting #2, at 8 (“Early and specific industry input is

valuable. Agencies generally spend a great deal of effort collecting and analyzing information about capabilities within the

marketplace. The more specific you can be about what works,

what doesn’t, and how it can be improved, the better.”).

Myth-Busting #4, at 9 (“To maximize market research

efforts, agencies are encouraged to engage vendors early in the

planning process to learn about market capabilities and ways

that industry may fulfill requirements in non-traditional ways.”).

Myth-Busting #1, at 5.

Federal contracting agencies, including the General

Services Administration,21 the Army Corps of Engineers,22

the Department of Homeland Security,23 the Department

of Agriculture,24 the Department of Health and Human

General Services Administration, Industry Communications

Plan, February 2020, at 2, https://www.gsa.gov/cdnstatic/GSA

_Industry_Communications_Plan%20January%202020_508.pdf

(“Successful acquisitions depend on a clear understanding of the

market’s capabilities and dynamics, requiring an early and meaningful engagement with industry and the application of strong

management practices within federal government agencies.”).

Department of the Army, U.S. Army Corps of Engineers

(“USACE”), Construction Project Partnering Playbook, April 30,

2022, at 28, https://www.publications.usace.army.mil/Portals/76/

Users/182/86/2486/EP%2034-1-1.pdf?ver=A4U9A4U_J8A3oXAy3

qyWLw%3d%3d (“Engaging industry throughout the pre-award

phase is critical to setting conditions for success during construction. It is incumbent upon senior leaders to engage with industry

on broad issues such as market conditions, industry trends, and

current and future USACE programs.”).

Department of Homeland Security, Reverse Industry Day,

https://www.dhs.gov/publication/reverse-industry-day (last visited Sept. 1, 2022) (“Reverse Industry Days (RID) provide DHS

acquisition professionals with opportunities to learn about the

issues that are most important to industry when doing business

with the department. During these events, panels feature

industry leaders addressing audiences of DHS acquisition

professionals who learn how to enhance the DHS business

environment.”).

Tiffany Taylor, Department of Agriculture, Communicating

with Industry, November 6, 2019, https://www.usda.gov/sites/de

fault/files/documents/spe-memo-communicating-industry.pdf (“Communicating with industry early, frequently and clearly throughout

the acquisition process is critical to determining whether and how

industry can meet the Government requirements to achieve its

mission and goals. It helps to maximize the return on acquisition

investment and to ensure access to high-quality supplies and

services.”).

Services, and Naval Air Systems Command,26 have

outlined policies and procedures for pre-procurement/

pre-RFP market research and information solicitation

of pertinent Industry members that serve tangibly to

strengthen (not diminish) their respective actual economic interests in contracting and RFP processes.

These agencies also routinely share draft RFPs with

Industry to provide advance notice of upcoming solicitations and to solicit feedback prior to final approval

and issuance of the RFP.27 For example, AGC of

America has partnered with public owners to facilitate

early and proactive communications with Industry,

including through organizing conferences for federal

HHS Vendor Communication Plan, at 5 (“HHS encourages

early exchanges of information surrounding acquisitions. An

early exchange of information between industry, the Program

Manager, Contracting Officer, and any other acquisition participants can ensure any concerns are identif[ied] and resolved.”).

Naval Air Systems Command (NAVAIR), NAVAIR-Industry

Summit Report: A Catalyst for Improved Competitive Procurement Communications, June 1, 2017, at 10, https://www.navair.

navy.mil/sites/g/files/jejdrs536/files/2018-12/navair-industry_sum

mit_report.pdf (“Information transparency in the early stages

of procurement holds the potential to benefit both Government

and Industry. By improving access to evolving requirements,

Industry can better plan prepare, and invest, while Government

is more likely to receive superior solutions and proposals that are

closely aligned to their needs.”).

See, e.g., Department of the Army, U.S. Army Corps of

Engineers (USACE), Phase 1 Draft Request for Proposal for

Galveston District $7 Billion Horizontal Construction Projects

Now Available on SAM.gov, Jan. 28, 2022, https://www.swg.us

ace.army.mil/Media/News-Releases/Article/2916688/phase-1-dra

ft-request-for-proposal-for-galveston-district-7-billion-horizontal/.

contractors to share updates and to help guide public

decisions about viability and scope of potential projects.28

B. State Procurement Officials Employ

Similar Policies Promoting Pre-RFP

Communications With Industry

Similar policies favoring pre-RFP communications

with Industry exist in various states. These interactions foster transparency and aid competition by

allowing Industry to provide their respective perspectives to government contracting officials.29 These

pre-RFP communications promote, not hinder, the

state’s actual economic interests.

State public authorities specifically recognize the

long-standing practice of engaging in valuable preRFP interactions with Industry members.30 For

See, e.g., AGC of America, AGC Federal Contractors Conference (AGC FedCon), https://fedcon.agc.org/ (last visited Sept. 1, 2022).

These communications are already regulated by applicable

state procurement, ethics, and lobbying laws. For example, in

New York, there are restrictions on communications between

government officials and vendors between the official advertisement and the award of a contract. See N.Y. State Finance Law

§§ 139-j & 139-k. This “restricted period” commences as of the

“earliest posting . . . of written notice, advertisement or solicitation of a request for proposal, invitation for bids, or solicitation of

proposals, or any other method provided for by law or regulation

for soliciting a response from offerors intending to result in a

procurement contract with a governmental entity and ending

with the final contract award and approval by the governmental

entity and, where applicable, the state comptroller.” Id. at § 139j(f). These restrictions do not apply to pre-RFP communications.

Public officials in New York, for example, will participate in

a conference in October 2022 that is designed to “foster business

partnerships between the city and state level government, prime

contractors, and small, minority, service-disabled veteran-owned,

and women-owned businesses.” This conference includes speakers

example, the Ohio and Kentucky state departments of

transportation have conducted Industry forums and

one-on-one meetings with Industry members regarding

the Brent Spence Bridge Corridor Project;31 the Texas

department of transportation has held Pre-Procurement

Partnering one-on-one meetings with design-build

teams, prime contractors, and lead engineering firms

to discuss the development, procurement, and implementation of the CapEx Central Downtown Project;32

and in California, Caltrans hosts an Annual Procurement

and Resource event where “Caltrans purchasers and

partners will have a list of goods and contracts they

from several state and local public owners, including the New

York State Office of General Services, New York City Mayor’s

Office of Contract Services, New York City Department of

Transportation, and New York Power Authority. See City & State

NY, Government Procurement Conference, https://www.cityand

stateny.com/feature/2022-Government-Procurement-Conference

-/?oref=csny-events-upcoming (last visited Sept. 1, 2022).

Ohio Department of Transportation, Kentucky Transportation Cabinet, Next Steps Taken To Improve Brent Spence Bridge

Corridor (May 16, 2022), https://brentspencebridgecorridor.com/

next-steps-taken-to-improve-brent-spence-bridge-corridor/ (referring to contractor outreach by joint project team “for all firms

interested in this historic project to ask questions, provide input

to the process, and meet with ODOT and KYTC personnel to

learn more about the details”). As a result of early industry meetings, amicus curiae is aware that the agencies made substantial

changes to the proposed procurement method, which would not

have happened absent the pre-procurement industry feedback.

Texas Department of Transportation, CapEX Central

Downtown – Pre-Procurement Information, https://www.txdot.

gov/inside-txdot/division/alternative-delivery/capex-central-down

town/preprocurement.html (last visited Sept. 1, 2022) (“TxDOT

held the workshop and is conducting the one-on-one meetings

solely to share and obtain information.”).

are looking to procure at the fair as well as upcoming

opportunities for Small Businesses.”33

* * *

All of this demonstrates that pre-RFP conversations

between public authorities planning a RFP and Industry

members needed to participate in the underlying

project are routine, important, worthwhile, and effective in terms of providing real economic benefit. The

expansive concept of property harm under the rightto-control theory risks the unintended consequence of

criminalizing the recognized, accepted, and legitimate

business practices embodied by interactions between

public procurement personnel and the Industry they

need to perform important services. The result is

potentially perverse: in the name of reaching fraudulent conduct through dispensing with the need for

proof of real economic/property harm, the right-tocontrol theory risks criminalization of a recognized

business practice that actually promotes the public’s

tangible economic and property interests. This theory

(also perversely) interjects uncertainty and confusion

for amicus curiae’s membership and for the government contracting and construction industries as a

whole, since proper, necessary, and specifically sanctioned pre-RFP interactions and solicitations for

information initiated by public authorities currently

take place at the federal, state, and local level around

the country pursuant to applicable policies and guidance. AGC of America’s membership is put to

the choice of entertaining ordinary course pre-RFP

Caltrans, Caltrans 18th Annual Procurement and Resource

Fair, https://www.dgs.ca.gov/PD/Events/Page-Content/Procure

ment-Division-Events-List-Folder/Caltrans-18th-Annual-Procure

ment-and-Resource-Fair (last visited Sept. 1, 2022).

solicitations that are favored by the government or

declining for fear that their responses (necessarily

provided through the prism of their knowledge and

experience without regard for “other” government

interests) could subject them to criminal exposure.

Amicus curaie respectfully requests that this Court

reject the right-to-control theory of criminal prosecution

as inconsistent with existing Court precedent over the

proper scope of the property harm required under the

federal wire fraud statute.

CONCLUSION

For the foregoing reasons, the Court should reverse

the ruling below.

Respectfully submitted,

LEAH PILCONIS

JORDAN HOWARD

THE ASSOCIATED GENERAL

CONTRACTORS OF

AMERICA, INC.

2300 Wilson Blvd., Suite 300

Arlington, VA 22201

ADRIAN L. BASTIANELLI, III

Counsel of Record

THOMAS J. CURRAN

ROBERT H. BELL

DORIS D. SHORT

PECKAR & ABRAMSON, P.C.

1325 Avenue of the

Americas, 10th Floor

New York, NY 10019

(212) 382-0909

tcurran@pecklaw.com

Counsel for Amicus Curiae

September 6, 2022

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.