The opioid epidemic has killed hundreds of thousands of people and decimated many communities. Investigative reporters and litigation have uncovered that the consulting firm McKinsey & Company drove prescription opioid use through the advice that it gave to Purdue Pharma. To add insult to injury, while McKinsey was consulting for Purdue, McKinsey was also working as a government contractor for the U.S. Food and Drug Administration on opioids—without violating federal ethics regulations.
Inspired by this case, I argue that organizational conflicts that arise when contractors do government work are a serious and underappreciated concern. The emphasis in federal regulation is on the fairness of the procurement process itself. But a variety of conflicts of interest can arise during the performance of years-long contracts that do damage beyond increasing costs, in part because conflicts of interest can undermine regulation.
Despite this substantial gap in the law, almost no scholarship considers ethics rules that bind federal contractors. I suspect this is because these guidelines have thus far not been linked to broader debates in administrative law. Th is Article begins to draw out those connections by situating ethics rules within significant literatures concerning the accountability of government contractors and the influence of private actors in the administrative state. Th is Article considers, in particular, the risks that come along with the use of an understudied kind of government contractor: consultants.
Ultimately, this Article seeks to redirect thinking about the regulations that bind government contractors toward worries about corruption. It offers a new framework for thinking about conflicts in the context of government contracting that emphasizes the risk that contractors might interfere with or have undue influence over regulation—two risks made vivid by McKinsey’s actions as a government consultant.
