Sunday, March 11, 2012


On October 28, 2011, I posted a piece on our adversarial acquisition system for my consulting firm's site at  This last week I listened to two distinguished practitioners discussing government contracts on during which Edward Kinberg, Jo Rupprecht's guest opined that contractor's and the government should get tough early on during contract performance, each side making sure the other lived up to the terms of the contract and the appropriate implementing regulations.  Edward's point was the contract might well run more smoothly through completion and close out if the parties stuck strictly to the rules from the beginning.  The rules.

So I want to revisit the rules and the rights.  We as taxpayers demand a system of rules to guide the payment of money for the goods and services our government buys.  We, through Congress, have set up an elaborate and complicated system of rules and regulations we expect the buyers and sellers to follow.  At the same time, we have, again through Congress, established certain rights a contractor has to seek redress if the rules and the contract language are not followed.  Through us, our government dictates the terms of the contracts.  Moreover, we expect that all the hundreds of thousands of rules we've set up be followed.

So, let's not be naive.  We have set up an adversarial acquisition system.  At its best, buyers and sellers are strictly enforcing the rules and the contract provisions.  This results inevitably in protests when the buyers do not follow the source selection rules and claims by buyers or sellers during contract performance when the parties don't follow the contract language and the appropriate regulations implicated by the contract terms.  Disagreements often arise over the meaning and interpretation of these complex and often ambiguous contracts.  As I said last October, let's not stick our heads in the sand.  The rules, regulations and detailed contract terms and conditions of necessity produce an adversarial environment.

But let's also not be concerned or critical.  There is nothing wrong with an adversarial system and it does not have to be contentious.  (Look at our judicial system.)  In government contract protests, contractors actually are acting as private attorneys general in policing the source selection system.  The OFPP reminds all agencies that contractors have rights, yes rights given by Congress, to protest and submit claims.  We should applaud a system, designed to protect us as citizens, which requires the parties to act as adversaries, each making sure its interests under the law are fully served. 

Grant Thornton recently reported that 81% of the surveyed contractors reported the government either frequently or occasionally requests the performance of "out-of-scope" work.  Only 22% of the survey participants reported that contract issues are resolved efficiently.  And only 35% of respondents consider their procedures for identifying extra work were effective.  Neither side is minding the store effectively.  Neither side is taking Edward Kinberg's suggestion to heart.  The system is meant to be adversarial and it's high time both sides paid closer attention to what the contract and the rules and regulations require.

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