I have heard from Vern whose stance is clear. Anyone else have a comment? Please!

By Vern Edwards on Tuesday, March 21, 2000 - 09:41 am:

Luigi:

There are a number of laws against wrong-doing in government contracting. I would tell you which ones to look up if I could figure out what wrong-doing you are talking about. But your talk about intimidation and, now, subjugation, is just too vague.

I still haven't read anything by you that describes a violation of law or ethical standards. I can easily see the possibility that the other party may have had valid reasons for complaining about some contractor employee or putting pressure on a contractor to do what they wanted it to do.

To the best of my knowledge there is no Federal law against government personnel complaining about a person to that person's boss, resulting in a poor appraisal or termination. However, such person(s) could ask an attorney about slander and libel. I did that on two different occasions when I was a contracting officer and contractor employees complained to others that I was doing wrong. I consulted an attorney, and their employers wrote me nice letters of apology (very humble), with copies to the commander of my organization.

I do not know of any Federal law against putting pressure on ("intimidating," if you prefer) a contractor to act or refrain from acting in a specified way, as long as the reasons for and nature of the pressure are proper and the specified act or omission is proper.

If you think that an agency is improperly awarding sole source contracts, then you should know that FAR 6.303-1(a) requires both contracting officers and agency technical personnel to certify the accuracy of their sole source justifications and recommendations. False certification might be a violation of 18 U.S.C. 1001. I know of one Marine Corps official who went to jail for accepting bribes to make such false certifications.

Finally, if you (or anybody else) thinks that an agency employee is doing something wrong with regard to a government contract, permit me to respectfully suggest that you (or they) consult an attorney at a law firm that conducts a government contracts practice.

In this situation the "proper authorities" have been notified. First the legislative bodies that passed the laws in question, in the form of committee staff have been apprised in writing. Their comments fall into two categories, polarly related. One group say with a sigh, "we'll just have to draft new legislation". The second asks the agency "Did you do a bad thing" and when they are told "no" they shrug their shoulders.

A law enforcement organization has been enthusiastically investigating but have run into an inability to understand the law and contract complexities. It is not as easy to get a white collar conviction as opposed to a bag of marijuana in somebody's desk. Supervisors have complained that the potential for conviction is low and the investment in learning is not worth it! Both an auditor (independent) and a "special agent" complained that they can't get their superiors to move because of the other work they would have to delay.

In some cases the intimidation has ocurred between small businesses and large and the comments about using political contacts for cover is correct. Mega business has the willing ear of the Congress. In other cases the intimidated contractors are so called "systems" contractors (Large businesses to SBA) whose abilities to get direct audiences with the government have shrunk immeasurably over the past years. The OEM for a weapon system will subjugate a subcontractor, Fortune 500 or not. I do not think that a "small" business is the only class of victim. Because the alternative is too painful to anger both the government and the prime, they will kill the messenger, perhaps the PM for the subsystem.

Face it, allowing some sole source to a prime contractor does not entail much personal risk on the part of a government PM or PCO. Going with the vendor, systems guy etc. is something that puts the establishment at risk and thus they take the position of going with the prime to subjugate the vendor and thus take a posture that amounts to intimidation or worse. Once that relationship exists a siege mentality that welds the PCO and the prime becomes impenetrable.

I have seen similar instances of a less egregious type in some of the mega-primes who are closing a plant. The closing organization may make a plea to the government that the taxpayer will suffer if some action is not taken and the government often turns a blind eye.

In two cases I know of with this same contract shop a subcontractor was simply told that the government did not have "privity of contract" so a wasteful or outright dishonest action or omission was not something they wanted to hear about!

Vern, you said that you would not ask for details because you only had one side, and then you turn around and say that you don't have data. Lets get back to the initial question. I wasn't asking if people are human, I was asking IF this were the case, THEN....

Assuming that the facts support an abusive relationship, does any reader know of regulation, FAR reference or legal recourse that would apply. Criminal or civil?

By Vern Edwards on Monday, March 20, 2000 - 02:00 pm:

John:

Essentially, you and Luigi are complaining about what you consider to be abuses of power. I do not doubt that some government personnel abuse their authority--they are human and humans often do such things. However, neither of you provides clear specifics, so it is impossible to evaluate your complaints, or to respond to them with other than a shrug of the shoulders.

Re-read Luigi's input of 3/19 at 0900:

"The argument concerned the extent and ability of bidders to meet contract requirements as a amall business (SB vs. Large), and whether coordination was accomplished with SBA and other advocates as publicly asserted. Later the SBA indicated their non concurrence... . The purpose of the intimidation was to quell any resistance to a contract approach."

What is he talking about? What did the government people do wrong?

It is impossible to determine on the basis of this information the precise nature and extent of the problem, other than the fact that somebody did something that Luigi didn't like. You both allude to violations of regulations and breaches of contract, but you do not give concrete examples. I can't tell from Luigi's information whether any laws or regulations were violated or contracts breached.

I have worked both sides of the government contracting market, and I've found that people on both sides act like bullies or make asses of themselves. I've had self-righteous contractor and government personnel accuse me of wrong-doing based on their own misinterpretation or misunderstanding of the regulations or contract clauses. ("You're breaking the law!" "I'll see you in court!" "What you're doing is wrong!" "I'm gonna report you to the IG!" "I'm going to call Congressman X!" "I'm going to protest!") After a while, if I couldn't make them understand, I'd ask their boss to replace them so we could get on with the job at hand. I don't feel badly about that at all.

It seems to me that you guys are painting this picture with a very broad brush. That's okay over a couple of beers, but I have to challenge you in this forum.

By John Ford on Monday, March 20, 2000 - 12:23 pm:

Vern, I will not attempt to answer for Luigi as to why he has not reported the "protection" racket he perceives, but I can tell you why it probably would not be effective. First, the abuses I see do not amount to criminal activity nor do they constitute false claims against the government. In other words, the government personnel are not lining their pockets. Therefore reporting them to the FBI or DoJ would be futile. They are simply abusive individuals who are placed in a position to exercise broad powers over contractors. Their actions constitute violations of the procurement regulations and contract terms, but, in many cases, save the government money at the contractor's expense. I cannot imagine an IG writing up a government employee for a violation that saved the government money. Procurement purity can be taken only so far.

By John Ford on Monday, March 20, 2000 - 12:07 pm:

I share Luigi's observations to a substantial degree. I also am a retired fed who is now working for a contractor supporting the government. I also see good contractor people being terminated from their jobs because they had the audacity to tell the government the truth concerning the status of the project, which was a message the government did not want to hear. Also, contractors have been threatened with not getting anymore awards under multiple award IDIQ contracts or poor performance ratings if they do not accede to government demands for contract administration actions or contract performance that is clearly not called for by the contract. Contractor management's reaction to this is similar to that of an abused spouse, if I am nice I will not be abused in the future. Of course, this only encourages the abuser. Moreover, this abuse seems to be directed toward small businesses. Large businesses that are politically connected don't seem to have this problem. (Shock and surprise) However, there is a quantum difference between a whining contractor who avails itself of its constitutional right to contact its congressional representative and an abusive government representative who, in an act of retribution, causes an individual to lose his/her livelihood or who diverts business from a particular contractor in a system that does not provide an adequate remedy for the aggrieved contractor.

By Vern Edwards on Monday, March 20, 2000 - 11:29 am:

Luigi:

"Protection racket"!?

If you think that government officials have violated the law, then call the FBI, the Department of Justice, the agency inspector general, or all three. Have you done that? If not, why not?

By the way--everybody should be above reproach, not just government people.

It certainly has become personal for the people who have lost their jobs! It is increasingly clear to many of us who have been on both sides, government and industry, that a "protection" racket is being used. I would submit that government people have to be above reproach, because of who they are. That is the basic concept of our government. An example is the innocent until proven guilty handicap that society lays on the prosecutors. When I was a government procurement official, I had to put up with contractors contacting congressmen and complaints to the ombudsman, protests etc. I was told that such was the situation we had to endure. It seems that the situation is turned on its head now and the concentration of power in merged contractors along with "entrepenurial government" has fostered some strange and dysfunctional alliances, conflicts of interest and back-channel communications that would have brought criminal charges under CICA in 1985. In 2000, under downsizing pressures some unfair practices are not only tolerated but fostered as "the way things are". Getting out is a solution that is not only unethical but sustains abusive people.

By Vern Edwards on Monday, March 20, 2000 - 10:00 am:

Luigi:

I don't know the facts, so I won't try to justify either side in the dispute that you described; and even if you were to provide more facts, you would only be telling us one side of the story.

I agree with Joel--that sort of behavior is not limited to government personnel. Contractor representatives go over the heads of government officials at least as often as government officials go over the heads of their corporate counterparts. Moreover, many firms use the protest system and complaints to congressional representatives and senior agency officials as tools of intimidation.

My reaction is this: you described the behavior of some people who aren't getting along. Whether this sort of thing should happen or not is beside the point. It does happen and it will happen as long as business is transacted by human beings.

If you dwell on what you believe to be the injustice of this sort of thing you will simply render yourself ineffective.

Negotiate. If it has become too personal, then get out.

By joel hoffman on Sunday, March 19, 2000 - 09:12 pm:

Luigi, I'm interested in the situatuon you hinted at. I would be very surprised to learn that there is widespread intimidation of contractors by Government employees. In my experience, I have been more likely to see: 1)the opposite behavior by contractor's upper management jumping up into Program Manager or Pentagon level, if not satisfied about anything, 2)hestitancy by many Government employees to assert the Government's rights in contract performance and 3)failure of many Government contract administrators to read and learn what promises were in the Contractor's proposal...... Happy Sails!

In a pre proposal meeting an argument ensued regarding the appearance of favoritism to one type of contractor vs. another. This challenge was met with a retribution by 1. Calling the superior of the company manager. 2. Talking with a prime contractor indicating that this company was not "cooperating".

The message was clear in both communications. This company would not be viewed in a favorable light, either as a prime or as a teammate.

The argument concerned the extent and ability of bidders to meet contract requirements as a amall business (SB vs. Large), and whether coordination was accomplished with SBA and other advocates as publicly asserted. Later the SBA indicated their non concurrence.

The purpose of the intimidation was to quell any resistance to a contract approach.

PS. The contractor representative had been employed as local manager and worked with this agency for over 15 years and was terminated from employment. Another contractor's local representative was terminated after protesting an award when the "message" was passed to his managers. 11 years as local manager, quality work and the fact that the legal staff within the corporation (and outside counsel) argued that the protest was valid.

By Vern Edwards on Saturday, March 18, 2000 - 01:32 pm:

Intimidation is the act of inspiring someone to do something by making them fearful of the consequences if they do not do it. Some forms of intimidation are legitimate and some are not.

I might try to intimidate a contractor by threatening to terminate its contract for default if it doesn't bring its performance into conformity with contract terms. I might try to intimidate a firm by threatening to award the contract to a different firm if it does not agree accept a contract clause that is required by statute or regulation. Neither of those forms of intimidation are illegal, and I think that both would be ethical depending on the circumstances. But it clearly would be illegal to intimidate a contractor by literally holding a gun to the head of its negotiator, and it would be unethical to use intimidation to obtain a personal favor.

What kind of intimidation are you talking about? What form did it take and what end did it seek?

I don't have any problem with a government official appealing or complaining to higher authority within a firm (i.e., going to the contractor's representative's boss) if she cannot get what she wants from a person at a lower level, unless the end that she is seeking is improper, like a bribe or kickback.

I am a former government type and in industry now. I am seeing a pattern of intimidating contractors using subtle retribution and outright appeals to executive levels within corporations to rein in program managers and contractor contracting personnel from objecting to contract terms or interpretations. It is surprising that an alliance between government and higher management within a corporation can undermine those who are negotiating, bidding and participating in pre contract communications.

In a recent case, pressure was applied via a prime on a potential subcontractor.

Can anyone cite restrictions of government officials regarding "interference" inside a corporation which results in bad appaisals or even termination of contractor employees?