Dealing With Bureaucracies
|DISCLAIMERThis article was written in mid-2003 and is intended to provide background
information for a lay reader and an indication of our familiarity with the general
field. DO NOT USE THIS ARTICLE AS THE BASIS FOR DECIDING ON A COURSE
OF ACTION. The information provided herein amounts to generalities that may or
may not apply to your specific case, has not been updated, and may therefore be
100% wrong at a later date. Consult an attorney before deciding on any specific
action, and keep in mind two old saws that couldn’t be more relevant:
“A little knowledge is a dangerous thing,”
“The lawyer who handles his own case has a fool for a client.”
1. Bureaucrats have to win, but they’re willing to win your way. Make sure you know their victory conditions.
To survive as a government employ – one of those much-despised “bureaucrats” – takes a particular mindset. Among other things, you have to believe in government service as an honorable calling, and see how your own little part of the huge government machine is a part of what makes it work. If you do well, you’ve made the nation (or state) a better place to be.
This viewpoint opens a trap for unwary contractors, however. Government employees who feel like they “lost” inevitably feel that the People have been betrayed. They have to win; but that doesn’t mean that you have to lose. Your typical agent is perfectly happy to win in your way, so long as he always wins.
2. Can the Government Win Your Way?
The first step to any bureaucratic dispute is to understand the government’s victory conditions, and how you can adjust your situation so that getting what you want doesn’t force the People to lose. [FN 1]
For example: We’ve been involved with many cases in which a given contractor was opposing the addition of an item to the JWOD Procurement List maintained by the Committee for Purchase from People Who Are Blind or Severely Disabled. [FN 2] Without going into detail, adding an item to the Procurement List essentially works a permanent assignment of all future contracts to a specified handicapped workshop. From the bidders’ point of view, the item simply disappears.
The private sector has obvious concerns about this, but the system is set up in such a way that the government often ends up balancing “the good of the poor, noble, souls who suffer from serious problems” against “the alleged harm to Corporation X and its rich, able-bodied owner.” It is not, one might argue, the most even of playing fields.
The interesting reality is that many of the businesses in question have arrangements in place to subcontract work to local hospitals and other handicapped facilities, often on the particular contracts in question. Bringing that fact forward allows the bureaucrat in charge to change his view from “finding jobs to the handicapped” into “taking a job from one disabled person and giving it to another.” He can, in other words, decide our way without “losing” to the private sector.
The Government Can Do Much More To Help You Than You Can Force It To Do In Court. Obvious? Perhaps, but it’s an important point to remember.
For example: We once had a case where Client had supplied the government for several years with a particular category of Widgets. The award had been based on a series of annual awards. Unknown to Client, however, a new administration had decided to fold the Widgets bid into a larger contract for several items in the same general category (“Gadgets”). Client failed to learn of the new approach until the deadline for bidding had already passed. Even worse, the new contract was for five years instead of one, and the very tight deadlines for filing a formal protest had arguably expired. He came to us saying, “Fix it!”
As a matter of background, the law requires the government to publish notice of upcoming contracts, [FN 3] but the reality is that agencies usually maintain lists of the known suppliers and make a point of sending them written RFPs (Requests for Proposals) when a new bidding cycle begins. In practice, the published notice amounts to a CYA [FN 4] procedure and established suppliers expect to receive a written RFP (Request for Proposals) when new contracts come up for bid. The real problem in this case was a simple administrative snafu; the new contract officer managed to somehow drop Client’s name from the list of known suppliers. That reality did not give us a cause of action, however. The only hope for a court-based solution came from some sloppy wording in the published notice, which said something akin to “All Varieties of Gadgets” without specifying “Widgets.”
We quickly worked our way the decision-making ladder to the head of the department where we were met, as might be expected, with, “We’re only required to publish a notice . . .”
To his great surprise, we agreed. “But that’s not the point of this call. What you have to do is a lot different from what you can do. Here are the facts as we understand them. Please have a look. If we’ve misunderstood, let us know how and we’ll decide what to do. If you agree there’s been a problem, though, let’s talk about getting it fixed before we lay out the lines of battle.”
Like most of his peers, the man in charge of that department was experienced, sharp, and extremely knowledgeable. He knew as well as I did what the “rules” are, and he also knew how they differ from the way things are “supposed to work.” Client should have been sent an RFP. His people had blundered by failing to do so. All jargon aside, we both understood that I was asking – or offering the chance, depending on your point of view – for him to fix that gaffe, and that I was doing it in a way that let him address the matter quickly, quietly and above-all internally.
Nothing made it work, of course. This was persuasion, not power. But it did. He called back a day later. The award, we were told, had been cancelled “Due to internal errors that made the solicitation invalid,” and we could rest assured that Client was now on the list of known suppliers.
He also told us that the government would have fought any effort demand that result; or in other words, when given a choice they were willing to make things come out “right,” but they would not have admitted that the earlier result was “wrong.”
The bottom line benefit: The problem was completely solved, it was solved in a matter of days instead of months, Client paid a fraction of what going to court would have cost, and he actually enhanced his relationship with his government customer.
The potential cost: Nothing. The time wouldn’t have been wasted even if the agency had refused to change its decision. [FN 5] The least we could have gained was a much deeper view of the government’s version of the story, and the opportunity to limit the damage from any eventual lawsuit. It was a perfect example of why it pays to attack the problem instead of the person.
Don’t Fight Until You’re Sure You Understand The Problem, Then Limit The Fight To The Problem. A lot of what good lawyers help you to do is identify exactly what the problem is – or more often what the problems are. “I don’t like what happened” may be the result, but you never had a right to win, only a right to be treated according to the rules. The trick is to identify at what particular point that happened.
Moreover, when you go beyond bid protests it’s quite likely that there
The Government Is Also Your Customer. Litigation is part of the game. Contract officers understand that much better than their private market counterparts. They wouldn’t be human if the didn’t resent it at all, however.
The best approach that we have found for dealing with this lies in simple customer relations. Don’t get in a fight until you know exactly what it is that you’re fighting about, and then make sure to focus on the problem instead of the person. It’s the difference between, “How dare you do this to me” and “It’s time to get a second opinion on the rules.”
In all honesty, lawyers commit this sin far more often than their clients. Good lawyers bully the problem, not the people
[FN 1] This rule-of-thumb approach tends to hold true in any situation except for high profile political crises. In my experience, corporate employees will sometimes see the spotlight as a chance to shine. Decisions will be made, if for no other reason than the fact that a corporate employee who decides and loses will be more employable in the long run than a person who refuses to decide at all. That balance does not seem to hold true in government service, with the result that a kind of bureaucratic paralysis sets in. The key in these situations is to get your information without being a “part of the problem” from the agency’s point of view, and to make sure that you miss no deadlines while waiting for the government to decide on a course of action. It doesn’t hurt to write your congressman either . . .
[FN 3] In Commerce Business Daily for the federal government, and in the Pennsylvania Bulletin for the Commonwealth. There are also various on-line notice structures.
[FN 4] “Cover You’re A**”.
[FN 5] Assuming that filing deadlines and the like were duly observed, of course.