As many readers know, I am retiring from private legal practice to focus on teaching, writing, and other interests. The wonderful team of government contracts professionals here at Koprince McCall Pottroff will continue assisting contractors with their legal needs. I couldn’t be prouder of our wonderful team of attorneys and staff!
For my last SmallGovCon blog post, in the tradition of our “Five Things You Should Know” series, here are five big-picture things I’ve learned in my years as a government contracts attorney. Oh, and whether this is the first post of mine you’ve read or the 1,200th (yes, I’ve written that many here on SmallGovCon), thank you!
1. Most people–both in government and industry–are honest and well-meaning.
Government and industry don’t always communicate well (see #2). A lack of good communication can lead people on both sides to believe the worst of each other. On the industry side, it’s unfortunately common to believe that many–even most–government acquisition officials are biased (often in favor of an incumbent) or otherwise dishonest. For their part, some government officials can see attempted fraud or wrongdoing around every corner, when in my experience, a compliance problem is due to a contractor’s failure to fully understand the myriad and complex rules, rather than an attempt to defraud the government.
Of course, there are some bad actors both in government and in industry. Over on our LinkedIn page, we sometimes post about contractors and government officials accused of (or convicted of) fraud, bribery and the like. But my experience is that these people are the exception to the rule. The vast majority of government officials are not biased or dishonest, and the vast majority of contractors are honest, too–and trying their best to comply with the rules. I think government/industry relations might improve if everyone decided to assume the best about those on the other side–an “innocent until proven guilty” approach.
2. Government and industry often have a communication problem.
In my experience, most government contracting officials have never owned a business or served as an officer in one. This can lead to a significant lack of understanding when it comes to dealing with commercial businesses.
For example, when I have taught government contracting courses to government officials, many of them are flabbbergasted when I say that contractors often aren’t aware that only a warranted contracting officer can modify a contract. “But–everyone knows that!” they splutter. No, I say, everyone who received thorough formal training on the FAR knows that. But contractors don’t go to Defense Acquisition University. They often enter contracting from the commercial sector, with no formal FAR training whatsoever. Without formal training, it’s not surprising that many contractors assume that any government official–like a COR–can modify a contract.
For their part, contractors sometimes incorrectly assume that government officials understand how their decisions will affect a business. “But, if they don’t pay me on time, that will create a cash flow crunch for me,” a small business owner might say. “How can the government not understand?” It’s because the government official in question has no frame of reference–he or she has never worked in the private sector.
Contractors and government officials alike should remember that those on the other side may have vastly different backgrounds, knowledge, and expectations. Remembering that, alone, may help mitigate communication problems.
3. Government contracting is still, in significant part, a relationship game.
“How do I find a mentor?” is one of the more common questions small business owners have asked me over the years. My response is typically something like, “well, who do you already know?” That’s because, in my experience, most mentors pick their proteges from a pool of companies they have already worked with, typically in a prime/subcontractor relationship.
Earlier this year, I gave a webinar series on the 8(a) Program with Jackie Robinson-Burnette, the (amazing) former 8(a) Program Director. Jackie spoke at length about the power of relationships in 8(a) Program success, even recommending that 8(a) Program participants connect with relevant government officials on LinkedIn.
It’s easy to think that because we’re in the internet age, with a pandemic-caused telework environment on top of it, that writing a strong proposal is the only thing that matters when it comes to winning government contracts. But, in my experience, the contractors who thrive the most do much more than write great proposals. They build relationships, within their industry and with the government. And they use tools like LinkedIn to further that relationship-building.
4. The savviest contractors don’t assume–they verify.
The worst calls I received as a government contracts attorney were from clients (or potential clients) who had a legal problem that I could have solved earlier–but now it was too late.
Small business size status is a good example. In my experience, it is very common for a contractor to simply assume that it qualifies as a small business, without investigating whether that’s actually true, particularly under the SBA’s affiliation rules–which are not always intuitive. Then, after the contractor has been named as the awardee of a set-aside contract, a competitor files a size protest, and only then does the contractor consider whether it might have an affiliation problem.
If the contractor calls me after it’s been protested, and it actually does have a size problem, there is nothing that I, or any other attorney, can do to save the contract. It’s going bye-bye. Size ordinarily is determined as of the date of the initial proposal, so any changes you might make after that won’t affect eligibility for that contract.
In contrast, my savviest clients asked our firm to take a look at their size status before they submitted the proposal! At this point, if we identified an affiliation issue, there was a pretty good chance we would be able to make some changes to mitigate it and protect the client’s eligibility.
Size, of course, is only one common example. The savviest contractors do their internal due diligence on all aspects of compliance to make sure they’re in good shape before the government–or a protester–ever raises a question.
5. If you think you’ve found a way around the rules, you’re almost certainly wrong.
When it comes to trying to evade the rules–legally, that is–I’ve heard almost every conceivable scheme. Problem is, so has the goverment.
Here’s a very common example. A businessperson owns 100% of two companies. She learns that, under the SBA’s rules, her overlapping ownership causes affiliation. So she calls me and says, essentially, “I thought of a way around this. I’ll just put Company X in my spouse’s name, but continue to run it.”
My response, of course, is “Wow! Pure genius! Literally nobody has ever thought of that before. We’ll surely circumvent the rules that way.”
Okay, I don’t really say that. I let the client down easily. But my point is that whatever creative idea you’ve had to legally circumvent the rules, someone else (probably multiple someone elses) have already been there and done that–and if there ever was a loophole, the government has closed it. The SBA’s rules, for instance, establish that companies owned by spouses are presumed affiliated.
By all means, keep those creative juices flowing. But they’re better used to develop strong proposals and relationships than trying to figure out how to dodge and weave around the rules.
That’s a wrap! Thank you again for reading my musings on federal government contracting over the years. Please keep visiting my colleagues here at SmallGovCon to learn the latest and greatest (or not so greatest) government contracting news.
Questions about this post? Or need help with a government contracting legal issue? Email us or give us a call at 785-200-8919.