10 Commandments of Government Contracting: Seventh Commandment

Seventh Commandment: Thou Shalt Avoid Hostility
For someone coming into Government contracting for the first time, one of the most difficult things to understand is the role that protests and disputes play in the Government contracting world. In the commercial sector, the thought of suing a customer or a prospective customer is simply absurd; after all, how can you expect to develop or maintain a good business relationship with someone you are litigating against? Isn’t the customer always right?

In Government contracting, one quickly learns about a “contract of adhesion,” that is, a contract that does not result from two evenly-matched parties negotiating a deal from scratch, but one that is created as a result of a procurement process in which the customer, a Federal agency, dictates the rules of the road from start to finish. Sometimes this customer makes mistakes, and Congress decided long ago that it needed to enact statutes that provided the contractor, or the disappointed offeror, legal recourse. Those statutes are implemented by Part 33 of the Federal Acquisition Regulation, “Protests, Disputes, and Appeals.”

Even though the statutes and regulations contemplate processes for protests, disputes and appeals, a contractor should exercise caution and restraint in pursuing these avenues. As a general rule, I advise clients to try to resolve disagreements with their customers at the lowest possible level and at the earliest possible time, always maintaining a professional demeanor. I also advise them never to go over a Government employee’s head until it is abundantly clear that that person will not deal with them reasonably.

Companies should deal with these issues on their own, for as long as they can, because introducing a lawyer into the process can complicate the matter in numerous ways. Perhaps most important in dealing with these situations is the “tone” of all communications. Tone is something rarely covered in school, but it can have great influence on your ability to resolve a problem with a customer. If that customer thinks you are yelling at her (for example, by typing an email in all caps), threatening her or condescending to her, your chances for success are quickly heading south.

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