The Importance of Language in Government Business

posted in: Other Transactions | 0
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     You have come across a broad sea and landed on a beautiful tropical island.  Tanned people in scanty clothing come out to meet you and your sailors clothed in 15th Century European seamen’s attire.  You have discovered a new world.  Wouldn’t it be nice to speak with the inhabitants other than through crude sign language and words unintelligible to them?  Yes, Columbus had a problem as did many explorers seeking new worlds and new horizons.

The language problem still exists.  Government acquisition folks often do not understand the extent of the problem.  We don’t speak their language. They don’t speak ours. In these sentences – we, they, their, ours – it matters not if you consider yourself to be a private sector innovator or a government official. There is a language barrier. Yes, the barriers go beyond language.  Who among the small outstanding innovative firms reads Fedbizopps or SAM plus or whatever it is called? Language symbolizes perspectives.

Language affects career government folks in all disciplines, but contracting officers serving as Other Transactions (OTs) agreements officers often have a real problem to overcome.  The phrase ‘determination and findings’ comes to mind with all its formality and bureaucracy when a simple memo for record would do.  I’ve often wondered why the determination comes before the findings.  Then there are things like ‘cost sharing’, which is a term not used in the OT legislation, evoking cost sharing in Part 16 of the FAR requiring cost reimbursement contracting; not applicable to OTs. Contract modifications, changes, often evoke echoes of Part 43 of FAR.  Is the change in or out of scope?  For OTs modifications are just modifications. There is no in or out of scope.

Interestingly, government people often do not understand their own language. Recently my organization was subcontracted to a company with a firm fixed price contract with a government agency.  In a recent event a government functionary objected to contractor representatives attending a certain government meeting.  It became clear that the senior government official wanted the contractor representative to attend, it was not an issue of a “government only” meeting.  The objecting official then said, “we don’t want you spending money on that, it is not in the statement of work.” Apparently, the implications of a firm fixed price contract escaped this functionary’s understanding.  What the contractor spent money on was not his business if the contracted work got accomplished.

Another example might be the DOD’s ‘profit policy.’  The government has a fee policy, not a profit policy.  Things that the government reimburses as ‘costs’ constitute gross profit in the private sector. Government contractor ‘fees’ are low; their returns on investment are among the highest in American industry.  It is a matter of language that affects substance.

Stove piped organizations, local myths and lore, and simple misinformation often impact the way government operates.  Then there comes the issue of dealing smartly, honestly and in a business-like fashion with private industry.  The big defense contractors know how to deal with government agencies.  They make money on non-value-added bureaucracy, delays, and government unique requirements.  They not only speak the language; they help mold it. This is not their fault; they do what government demands.  All this is foreign to much of the American industry; including most high-tech innovation leaders.

Some government agencies believe they are experts at dealing with innovative private industry. They have created outreach mechanisms in addition to Fedbizopps announcements. Among these are OT consortia. While usually more friendly to non-traditional innovative business, some encumber themselves, more than necessary, with high overhead government unique process and practices.  In my experience, government agencies too often are looking for an ‘easy button’ to put money on contract, rather than exploring commercial ways of doing business.  The agencies readily, almost by default, import FAR/DFARS clauses into an OTs with a ‘consortium management firm’ (a support services contractor to form and administer a consortium).  This ‘base agreement’ is littered with FAR/DFARS clauses.

With these FAR/DFARS clauses the government agency thinks it has achieved a well understood, reliable understanding on the issues covered by the clause.  But does it understand is basic contract law?  A primary rule of contract interpretation is contra proferentum.  A contact clause is construed against the drafter and in favor of the party upon which it has been imposed.  In the context of an OT, which is not a procurement contract, a standard government contract clause may not have the meaning the government assumes.

The real issue is even more basic.  Government speaks in abbreviations and acronyms.  Government folks themselves sometimes do not know what the acronyms stand for.  At NASA I was working issues that required me to talk to employees who worked around the launch pads at Kennedy Space Center.  The acronym SCAPE suit often came up. Feeling somewhat stupid I eventually asked an official what it meant.  He knew what the suit was and what it did but couldn’t elucidate the acronym: Self-Contained Atmosphere and Protective Environment.

Things that government folks think make perfect sense in solicitations sometimes seem like gobbledygook to perfectly intelligent people in the private sector. In the private sector firm fixed price is understood to mean a fixed price for delivery of the contract result.  As noted above some government folks are so inculcated with cost reimbursement contracting that the notion of a fixed price eludes them.

Language affects thinking!  Language can open opportunity for fruitful dialogue or be barrier.  Government tends to be inward looking, in effect creating a closed system few from the outside can penetrate.  Being well schooled in government terminology and thinking is often a handicap when dealing with private sector firms.  Learning a common language can help bridge divides and open new opportunities for collaboration and reshape culture.

 

written by Richard L. Dunn

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