Let’s take a view from outer space, an alien’s view. It’s a view of reality we often cannot see, here in the trenches. Government contracting is an adversarial system. Face it. An alien can see it. Once we do see it, perhaps we can write a user’s guide for how to deal with it: something besides a FAR. We’re writing that book, one chapter at a time.
Government contracts are contracts of adhesion. That simply means the federal government dictates the terms and conditions. Why is that so? Because we taxpayers require rules and regulations on how our dollars are spent in the acquisition system. We demand a stack of statutes, regulations, executive orders, regulations supplements, memoranda and directives more voluminous than the tax code. We want government contracting to be the most regulated enterprise in the world.
All these rules and regulations produce an adversarial environment. We stick our heads in the sand or try to find the moral high ground and deny the parties to the contract are not really partners. But the aliens see the realities: a changes clause permitting unilateral changes and requiring performance despite what should be a breach of contract; a termination for convenience clause allowing the government to walk away from the contract; a disputes clause requiring continued performance while litigating whether it is necessary to do so; and a procedure to protest that the rules were broken.
We worry ourselves to death about whether our “partner” will be offended if we submit a claim under the changes clause, we dispute a contract interpretation or we protest an award. The alien scratches his head in disbelief. What do you expect? How can any reasonable person be offended by a contractor using the rule book it did not even write? It’s not even its rulebook!
It’s time we faced up to reality: the acquisition system, because of its rules and regulations, its contracts of adhesion and its available accusatory remedies, is adversarial. That’s not to say it needs to be contentious and unfriendly. Civility can live in even in our courtrooms. But there is no excuse for being in denial and not facing reality.
The user’s guide to government contracting in reality starts with simple maxims: 1) it’s okay to protest; 2) it’s okay to submit a claim; and 3) it’s okay to engage in a dispute under the disputes clause. It’s okay because that’s the way the system is set up, as any alien can see.