Helping the “old think” Bureaucrats and Their Lawyers Get to Yes

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Not infrequently government program managers and other acquisition professionals see an opportunity where some form of innovative contracting would expedite or enhance their mission. Sometimes they get a response lacking in knowledge and understanding, such as “Other Transactions are illegal.” More often, however, legal counsel or someone relying on legal counsel will merely advise “You can’t do that.” The ‘that’ might be enter into a dialogue with potential industry partners, encourage companies to team and submit a joint proposal to the government, and use an ‘other transaction’ or other innovative and non-traditional form of contracting. Just saying “no” is easy but may undermine a mission important to DoD or national security. Therefore, a challenge question should be presented to help obstructionists get to ‘yes.’ Examples of the kinds of questions to ask are:

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Here is the challenge question for the person relaying the ‘no’ or their attorney: What is the (1) specific statutory language, (2) regulation that has the force and effect of law, or (3) court case directly on point, upon which you rely to make the ‘no’ statement. And not just upon which you rely (interpretation) but which clearly mandates only a ‘no’ answer.

Sometimes there will be no answer. Other times a GAO protest opinion will be cited. Of course GAO protest law is not applicable to other transactions. They might also cite the Guide for Prototype Other Transactions issued by the Director, Procurement and Acquisition Policy in January 2017. However, that Guide provides non-binding guidance not mandatory regulations. Moreover, as pointed out in the analysis of that Guide published in the Government Contractor magazine in January 2017 (available on this website), DPAP has no authority to issue binding regulations on Other Transactions or the Guide to the extent any of its provisions purport to be mandatory.

If there actually is some law or regulation directly on point then perhaps it might need to be changed. Mere disagreement about the wisdom of a technical or business approach may be within the purview of a senior management official, but seldom should be the basis for a lawyer’s veto.

A corollary vacuous assertion from the “just say no” bureaucrats/lawyers often is “you lack the legal authority to do that.” The question then is who has such authority; and, what is the mechanism for a delegation of the authority. Then ask what help can you be in obtaining the authority.  

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Challenging the obstructionists does not need to be confrontational if handled with skill; ask the right questions and let them tell you that they do or don’t understand the authority or regulations.  It may be a learning opportunity and a chance to do the right thing.  

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