Okay, things must be getting out of hand, because I agree with everybody.

(Of course, my wife and I have had a couple of glasses of wine and she just told me that I could buy that new pickup truck that I've been wanting.)

By Steve Cohen on Wednesday, March 8, 2000 - 07:20 pm:

John, Stan , Vern and Eric:

This is a very interesting discussion. My impression is this over reliance on lawyers by contracts people is government unique. From my experience and perspective the government contracting corps is too dependent (a generalization but not too far off the mark) on the legal community in making business decisions for which lawyers may have little, if any, experience. This over dependence has contributed to the government's and contractor's increased cost of doing business. It has left COs ineffective, and untimely in rendering what should be common sense decisions on uncomplicated business related issues. How can the government truly adopt commercial methods with lawyers acting as a barrier between buyer and seller?

As a "rule of thumb" lawyers should be the last person a contracting officer should have to or want to speak to, to help with a decision or get an opinion from. Yes, they are smart but so are rocket scientists.....and contracts people if they want to apply themselves. Smart has nothing to do with it. If you have the need to discuss an issue than discuss it with your contracting associates....they have the experience you are looking for. Lawyers are trained to interpret things in a special way. That way is usually understood only by other lawyers and many times makes things more complicated than they need to be. Most of the opinions rendered by lawyers have nothing to do with the law but have everything to do with their influence and power in this society. There is nothing more subjective than the law and quite a few lawyers like it that way for accountability purposes.

I think a big reason for this over reliance on lawyers is the government (civil service) does not make a wholehearted attempt at recruiting contracts specialists from outside of civil service. You could say that government contracting suffers from inbreeding. I have run across very few government contracts people who have private industry experience. Yes, I know there are government programs such as training with industry but that's for less than a year and only touches a very few...not the same as being in the trenches, having to work to budget, making financial forecasts, obtaining those forecasts, developing strategy for cash flow, defining your value in terms of profit, reacting to government appropriation law (if your a defense contractor), implementing cost accounting standards not even the government understands, etc, etc. Civil service is also the antithesis of promoting risk taking.

Its time for a paradigm shift within the government contracting community and I don't think they can do it without outside help. If mentors only mentor what their experience is and role models are limited to a cookie cutter mentality how will this circle be broken? It's broken by bringing in new experiences and fresh thinking. The point being we need to take government out of the hands of the bureaucrats or change bureaucratic thinking because it impedes progress and change.

The real challenge is how to do this. In my opinion it can only change from within. When the bureaucrats themselve determine to become less bureaucratic; and civil service actively recruits outside experience. Civil service must reward its employees for being creative thinkers and risk takers. I believe contracts people can epitomize this shift because of the authority and responsibility that is given them. Its there for the taking if they want it and are willing to pay the price (take the risk?) of exercising their position of authority. Then there will be a chance that real change can take place.

So all you contracts people out there take your profession back from the lawyers. Start using your training and experience in making good decisions and providing sound business advice. Become knowledgeable of your profession so that you can make those decisions with confidence. Talk to your contractor counterparts and find out how they make decisions. Use all the resources you have available to you (lawyers too but with much discretion). Don't be afraid to make mistakes and take chances because in the end those mistakes and chances will give you the knowledge to make better decisions in the future. You have all the tools you need in your tool box to do that. Never allow yourself to get to a point to where you think you have no more to learn. Learn how to build good working relationships with your customers and your contractors. Be fair (your allowed to be), do a lot of listening....communicate, use common sense 99% of the time, and you will be very successful and looked upon with esteem by your peers and seniors. Good luck!

Steve

By Eric Ottinger on Wednesday, March 8, 2000 - 07:17 pm:

Vern,

As one of my more colorful supervisors said to me once, “Everything you have said is correct, but…” The issue isn’t a question of what 1102s should expect from lawyers. After just a couple years of experience, most of us have a pretty good idea about that.

Others in the process (e.g. higher management) view the lawyers as a seal of approval and an assurance that we aren’t violating law and policy.

I don’t really mind. Sometimes I need the lawyers to help me say “No.” I would only note, with 25 years of experience in various agencies, that the quality of support that an 1102 can expect from GC, can be highly variable.

In some offices there is a bit of social comedy. The lawyers view themselves as white wine drinkers, symphony goers and generally a cut above. They seem to think that 1102’s prefer wine with screw caps, prefer stock car races to the opera and wouldn’t know which fork to use without printed instructions. Whether you find this kind of snobbery irritating or merely amusing is a matter of personal preference.

(I can’t address the question of overall levels of education. I could name some contracting officers with impressive degrees in highly challenging disciplines. However, they wear it lightly.)

As for the controversy that Vern mentions, there were lawyers on all sides of that issue, sometimes expressing opinions that I would consider off-the-wall. For a summing up, I would refer the reader to the March 15, 1999 Federal Contracts Report. If this is a “plain language” issue, it is interesting that we have so many Juris Doctors with wildly different readings.

A “smart” lawyer understands that a good contracting officer is a team player with certain key legal responsibilities and certain prerogatives to go with these responsibilities. He/she keeps this in mind when he/she provides advice. If the lawyer views himself as some kind of super contracting officer empowered to make sure that the contracting officer will do the “right thing” even when the CO doesn’t view the problem the same way, that can be irritating and cause problems.

There is another difference in the world view. An 1102 usually knows when he is outgunned and outvoted. A lawyer usually figures that he will be proven right on appeal.

Stan,

Reading between the lines, I would bet that some of the contract specialists were playing stupid like a fox. I think some of them had figured out that their supervisors were dangerous. Rather than cause their supervisors to lose face or get into an argument that wouldn’t be career enhancing, they let the lawyers be the source of guidance that they would otherwise obtain within their own office.

Mike,

I think you are dead on the money. I think Vern and I may have downplayed the “gatekeeper” function. It’s real. I just wish it would be exercised with appropriate discretion.

Eric

By Michael Love on Wednesday, March 8, 2000 - 03:49 pm:

OK, I'll be the fire hydrant in this pound and admit that I am a lawyer.

I have worked with contractors most of my career but have consistently found that they also do not go to lawyers early. In private industry one reason is cost if no in-house council is available or lacks the requisite expertise. Another reason is that lawyers too often say no when they should say "Yes but not in exactly that way." Lawyers are often risk adverse and are trained to see obstacles, not opportunities. A good lawyer, that is a counselor, discusses the issues from a number of perspectives so he or she is sure not only of the specific question asked but also the ultimate objective. Failing to do so can preclude an ability to say, "Yes if you do this…"

My experience in private practice was that clients almost universally welcomed a lawyer's nonlegal input if it was well informed. But in private practice there is little doubt who makes the ultimate business decision, the client. In government, since all agencies' acts are circumscribed by the law, lawyers appear to have much more of a gatekeeper function, even when they should not.

I also think that being a good 1102 requires an understanding of the fundamental legal requirements and an ability to use the FAR and agency specific regulations. But knowing them all and also keeping up with the business knowledge and skills an 1102 needs to properly represent the government's interest may be too much to ask. It seems to me that the key is knowing when there is an issue so that the lawyer can be asked the question.

By Stan Livingstone on Wednesday, March 8, 2000 - 02:29 pm:

Most of the government lawyers I talk with at various agencies say a good part of their time is spent responding to very basic questions any good contract specialist/CO should already know. It seems like many contract specialists/COs don't want to do the proper research and ask their lawyer what the proper answer is.

This subject goes right to the heart of one of my pet peeves - a big proportion of 1102's don't have the right training, experience, or disposition to be in the series. A good 1102 should constantly be inquisitive and look for better solutions, be an analytical thinker, exercise the best possible judgement, be an effective oral and written communicator, be customer oriented, take pride in every aspect of their work, and not be afraid to take risks or even confront people on sensitive issues. What we have are a number of people that came into the series over the years just because a job opened up and they qualified.

The new 1102 standards and recent emphasis on training will go a long way to correct the situation. However, that takes time. Meanwhile, we have way too many people in the ranks who are comfortable to sit in their cubicle or office each day and process everything according to their cook books. These are the people who seek answers to the most basic questions from their lawyers, program managers, co-workers, or anybody just so they won't have to do research themselves or take a chance of doing something wrong. These people have no idea how to begin to act like a business expert or business broker - or add value to the acquisition process.

By Vern Edwards on Tuesday, March 7, 2000 - 08:30 pm:

Why should a contracting officer go talk to a lawyer?

In order to find out the law, of course, so that he or she can ensure that a contracting action is consistent with the law. I do not mean "the law" in the sense of what are the applicable statutes and regulations -- a competent contracting officer should know that. Any contracting officer who goes about his or her business without knowing about published statutes and regulations that are pertinent to that business is professionally incompetent.

A lawyer provides advice by telling us what the courts and administrative tribunals say that the law is and how they have applied statutes and regulations in specific situations. That is the specialized province of lawyers -- how to find and decipher the decisions of other lawyers, the ones we call judges -- and how to apply those decisions to a variety of specific facts. The lawyer is professionally trained to extract "the law" from court decisions --that is, to find and apply precedent. (But a CO, as an educated layperson, should know about well-established precedents.)

If a contracting officer goes to a lawyer and asks if it is okay to do X, and if the lawyer cites a statute or a regulation which plainly says that contracting officers may or may not do X, then the CO has not done her job, because she should have done her homework before going to the lawyer.

Where it gets tricky is when some tribunal has interpreted statute or a regulation in a way that is contrary to ordinary expectation or to the apparent "plain meaning" of a statute or regulation, e.g., the Christian Doctrine or those cases last year in which the GAO interpreted FAR 15.306(d)(3) in ways that seem to be contrary to the plain language of the regulation. (We had a long talk about those cases at the old Water-cooler in the thread "GAO Nullifies FAR Part 15 Rewrite.")

COs need to know the boundary line at which their responsibility and competence to know the law ends and where the realm of the lawyer's professional competence begins. They need to have a clear idea about what they should want from a lawyer. No CO should go to a lawyer to find out what the statutes or regulations say. A CO should go to a lawyer to find out what the regulations mean. A lawyer can answer that question only on the basis of an analysis of the case law, i.e., precedent. And a good lawyer should be willing to explain the precedent to the CO. None of this, "It's too complicated to explain," professional snobbery.

See: Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921), Karl Llewellyn, The Case Law System in America (Chicago: The University of Chicago Press, 1989), and Richard A. Posner, The Problems of Jurisprudence (Cambridge, Mass.: Harvard University Press, 1990).

But keep in mind that in virtually every legal dispute, all the lawyers claim to have the facts, or precedent, or both on their side, and half of them are wrong.

Of course, if we know a lawyer to be a wise person, we may solicit her opinions and advice about matters outside the realm of their professional competence. Most of them are intelligent and well-educated in the formal, classroom sense. However, it does not follow from the possession of a law degree that the possessor has a lick of common business sense, or even simple common sense for that matter.

By Eric Ottinger on Tuesday, March 7, 2000 - 06:42 pm:

John,

I don't really disagree with anything that you have said. For instance, whenever a customer suggests the possibility of a sole source, my first recommendation is that we should go down the hall, talk to GC, and see what will fly before we put pen to paper.

It would be nice if lawyers really were in a strictly advisory role. Unfortunately, the people who determine pay grades put undue emphasis on academic credentials. (If they asked a different question—“Who is it that can do the most harm?” -- 1102’s would be paid more than lawyers. It is still a peculiarity of the civil service that checkers and approvers are rated higher and paid more than doers.) Since they usually outrank us, some lawyers are prone to pull rank. And our higher-ups can be very reluctant to go forward if we don’t have the stamp of approval from GC.

Some lawyers (but not the best) feel that it is their role to lecture us on ethics (albeit the contracting officer is the person who signs the document and “answers the mail” when things go wrong). Some think that it is their role to give us gratuitous advice on business judgement issues. Some lawyers do research. Some seem to feel that it would undermine their authority if they were expected to back up their personal opinions.

One point that is obvious but not often acknowledged is that nobody learns Government contracting in law school. And, it is my impression that the available training and education for the purpose of bringing new lawyers up to speed in Government procurement is even more haphazard and disorganized than the training available for contracting officers. Generally, for any particular issue, there is a pretty good consensus among Contracting Officers. (Of course, we love to argue, but our arguments can obscure the extent to which we all agree on the fundamentals.) With lawyers, you can get wildly diverse answers depending on which lawyer you ask. (I brought that up once and the only response that I got was that I was guilty of “forum shopping.” A very lawyerly answer, I thought.)

(I would bet that more than half of the weird and really off-the-wall opinions, that drop into the Water Cooler/Open Forum on occasion, start with a lawyer somewhere.)

I agree with Vern and commend him for his bluntness. If I am trying to be diplomatic, it is partly because I have worked with some very good lawyers and I am reluctant to generalize.

As for the issue at hand, the “bureaucratic pragmatist” contract specialist should have his/her act together, know what the key issues are, have taken counsel and done some research, and have a strategy before he energizes the lawyers or any other of the “I’m here to help you” tribe. Otherwise, he/she invites these helpers to go off half-cocked with “recommendations” that will make the whole process much more difficult.

If, however, you have worked with a lawyer, trust his/her judgement, and the lawyer isn’t snowed under with work, sure, confer at any point. Like human relationships generally, you will have an easier sell if you get the person to feel that he/she is part of the team and involved from the start. (Smart program managers have the same attitude toward their contracting officers.)

In short, I don’t mind conferring at any point in the process with a lawyer who understands his/her role in the team and respects me enough as a customer (i.e. client) that he/she won’t use my contract as an opportunity to posture or grandstand.

If I say “smart lawyer” that is to say that I have been fortunate enough to know a few and I value them highly. As for the others, I can tell some war stories, but…

One old boss, many years ago, believed that if a lawyer applied for an 1102 position he had to hire that person. Few of these people lasted as contract specialists and some of them were highly entertaining.

(An observation, about twenty years old. Independent reviewers have about six hot issues to which they pay attention. If the reviewer can find a reason to pursue one of these issues with regard to your contract, he will. A glaring error or defect that doesn’t fit one of these pre-conceived issues, will go right by. This goes for lawyers as well, especially if they are busy. The only quality checker that you can really count on is yourself.)

One other point: Lawyers like doctors are trained to deal with things that are already somewhat broke. Their training is really a catalog of things that can go wrong. This gives them a somewhat skewed view of the world. For the most part it is our job to stay within the rules and write a contract in clear unambiguous English and not to be spooked by unlikely or purely hypothetical scenarios. In other words, it is our job to focus on keeping the contract healthy. It is a different, more pragmatic, and less theoretical view of the world. Similar observations have been made one the private side.

(A lawyer who had been a contracting officer, said to me once, “I understand. A contracting officer has to move the paper.” Some do understand. Some don’t.)

Hoping this clarifies,

Eric

By Vern Edwards on Tuesday, March 7, 2000 - 12:56 pm:

John:

It would be unfair to generalize about a group as diverse as "lawyers." In what follows, please note my use of the words "many," "some," and "most."

I think that many lawyers want to manage the acquisition process rather than to restrict themselves to giving legal advice. They are usually smart people and are better educated that most GS-1102s, and I think that many of them feel that they are better qualified to make acquisition decisions than most contracting officers. Indeed, some of them hold GS-1102s in professional disdain.

However, the FAR gives more authority to contracting officers than to agency lawyers, so some lawyers use their professional credentials to leverage their limited official authority. When they cannot exercise positive authority to make their colleagues pursue the course of action that they prefer, they become roadblocks, using "legal analyses" as bases for refusing to sign off on procedures and decisions with which they disagree on practical grounds. Their opposition to a procedure or decision is often enough to frighten mid and senior level managers into redirecting the rest of the team. Such tactics are bound to stir resentment.

It's an old trick, and too many GS-1102s have made themselves vulnerable to it because they don't know the statutes; don't know the FAR inside and out; don't read the decisions of the GAO, the boards, and the courts; won't do their homework; and, haven't developed skills in analysis, reasoning, and rhetoric.

By John Ford on Tuesday, March 7, 2000 - 11:12 am:

In some posts to the Forum, and its predecessor Water Cooler, I have noticed an aversion to bringing lawyers in on an issue until things get really dicey. Then the advice is to find a smart lawyer to help resolve the situation. My question is why this aversion to getting the lawyers in the picture at an early stage of a problem? My experience is that getting knowledgeable people from various disciples (law, auditing, engineers, etc.) to work a problem from its early stages generally results in a better outcome sooner. The KO is always in charge of the process and responsible for the contractual solution. Everyone else is only an advisor. The KO is free to accept or reject any of the advice he/she receives, but at least the KO has that advice to consider when reaching a decision.