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By Steve Kelman

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Putting clarity into contracting

It is widely known that one reason contracts go south is that the government meant one thing when it wrote the contract requirements, and contractors interpret what the government wrote as meaning something else. Out of these differences of understanding grow bad blood, disputes, and lots of money down the drain.

Occasionally, the "misunderstandings" aren't really misunderstandings at all, and reflect an effort by the contractor to exploit ambiguous language to its own benefit. More often, however, the problem is simply that the language was not clear enough, and that the government honestly meant one thing, while the contractor honestly thought the government meant another.
 
In a panel in which I participated at the recent National Contract Management Association Wasington conference, Claire Grady, the Senior Procurement Executive at the Coast Guard, discussed a fascinating effort at the Coast Guard to deal with this, called a "customer advocacy team." (The customers in question here are the program offices buying the goods and services about which the requirements have been written). The team consists of program people whose job it is to translate what the customer wants into RFP (or contract change order) language that industry will be able to understand. So the job is being done by people who have the perspective of a program office, but communications skills that engineers in program offices often lack.
 
Grady's presentation was part of a panel at the conference on achieving cost savings in contracting. At the risk of sounding like a broken record -- (do younger blog readers know this expression, or am I pathetically dating myself?) -- this is going to be one of the central jobs of contracting professionals for the foreseeable future.

I am going to be writing over the next few weeks two columns for Federal Computer Week expanding on some of the ideas for how contracting professionals can help. I should say in advance, however, that ideas shouldn't just be the province of Claire or Steve or whomever. Every contracting professional should challenge himself or herself to think of at least one way the government can get a better deal on at least one contract (or task/delivery order) in which you are going to be involved over the next few months, and keep repeating that challenge.

Posted on Nov 18, 2011 at 12:09 PM


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Reader comments

Fri, Nov 25, 2011

I fail to see why it just isn't the Contracting Officer's responsibility to perform such functions. Given that the 1102 is "professionalized" and most KO's have college degrees, this should be an easy task for them to do...Oh that's right, many 1102s have fulfilled their educational requirements at degree mills and couldn't write their way out of a water paper bag.

Wed, Nov 23, 2011

One fool-proof way to reduce costs is to: ORDER LESS.

Sun, Nov 20, 2011

One way to do better is to fix the broken source selection process. The formality and rigidity of the government's process for competitively selecting contractors and the government's reliance on paper "technical" proposals as the bases for its deals prevents it from conducting in-depth, one-on-one discussions/negotiations with the contractor selectee before contract award. Only the government would enter into a complex $500 million contract without spending days in conference with the prospective contractor going through the document page-by-page, discussing it thoroughly, and engaging in thoughtful give and take in order to perfect the deal. Why does the government behave so foolishly? Because the Executive Branch has yielded to the GAO's absurd "case law" interpretations of the impenetrable FAR rules about clarification and discussion. The result is to make COs terrified of making a fatal mistake that would lead to a sustained bid protest. It's easier to keep your mouth shut until after award that to try to sort things out before making a commitment. Fix that problem and put smart, skilled people in charge of discussions/negotiations, and you will have gone a long way toward making it possible to get better deals for the taxpayer.

Sat, Nov 19, 2011 Gorgonzola

Some low hanging fruit, Professor: (1) Get COR to examine carefully every invoice; inadvertent and often systematic errors are common; looking for fraud is a waste of time. (2) Just for fun, tell govt tech overseers and CO that a GAO-IG team is arriving tomorrow morning and will be expecting separate, private in briefs from the govt team and the contractor's PM; exercise: formulate what can we tell them about progress and alignment of the two parties? [the foregoing technique is guaranteed to tease out gap issues, or your money back.] (3) Build into individual annual performance objectives of the govt managers some (rarely seen) specifics about oversight duties, including early detection and resolution of govt-contractor gap issues. The vexing nature of the gap issue is that it is so easy for govt and contractor teams to get away with no penalty for their joint misunderstandings. The tools are there to rivet their attention, rather than aiding them as they inevitably try to cut themselves a break and link arms to portray the contract/program as just fine, thank you.

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