When Dan Gordon was Administrator of the Office of Procurement Policy (OFPP), he is reported to have replied to a contracting officer who said she was nervous about communicating with industry representatives because she did not want to get in trouble with her lawyers: "My answer to her was, if you need to, take five lawyers from your agency with you, but have the meetings. Lawyers are your friends." Dan, of course, is extraordinarily enlightened, but he also knows there are a bunch of good lawyers out there. Lawyers can be obstructionists (just telling you what you cannot do). Or, the good ones tell you what to do to get the best result.
The first best practice we think of us making sure the solicitation is legally sufficient and written in clear, concise and understandable language. In our experience, most disputes arise because of the failure to properly vet (evaluate for approval) the solicitation. We also believe lawyers are indispensable at this stage. Good lawyers who are working with their clients to make sure the best results are achieved. And we mean on both sides.
To our way of thinking, draft solicitations are a must. And they always should be reviewed for clarity and legal sufficiency by agency lawyers. Contractors also should engage counsel to complement the effort. Contractors should not hesitate to raise questions about unclear language. If necessary, they also should not shy from protesting promptly to make sure the solicitation gets an independent view. Cliches abound. An ounce of prevention . . . . Pay now or more later.
We believe that the most frequent failures of language are in the statement of work and the evaluation factors. After all, what can be more important than clarity about what is to be done and how the proposed contractor will be evaluated? Post award claims based on contract interpretation should virtually be eliminated if solicitations are properly vetted and the team of reviewers includes good lawyers.
For those who complain that this vetting process takes too much time, take a look at how much time gets wasted on the back end in the disputes process over what meaning was intended.
Dan Gordon is one of our leaders. We should listen to him. We've heard some of our would be leaders scoff at the myth busting memos he sponsored. They think the descriptive term is too cute. Get over yourselves and past the title. Dispute avoidance and resolution is all about communication. All true leaders in the government contracts field agree on that. Proper communication at the solicitation stage is just part of the required communication package which must accompany every procurement.