Third Commandment of Government Contractors: Thou shalt start as low as possible

by Thompson Coburn LLP

(This article is part of a 10-part series for the blog of Public Contracting Institute called, “A Government Contractor’s Ten Commandments.”)

If all we knew about Washington was based on the dramas we watch on television or the stories reported in the media, it would be easy to conclude that everything that gets accomplished is based on who people know. Make no mistake about it, knowing the right people can be a very helpful thing over the course of a career in Government contracts, and that is one place where experience trumps raw intelligence. However, experienced executives also know that they simply cannot keep going to their same contacts (senators, congressmen, political appointees) every time a problem arises — at some point they will have used up all their credit.

If you are in this business for the long run, you should never lose sight of the fact that most Government actions originate with and are controlled by low-to-mid-level Government employees who are there for the duration and who remain in place even as political appointees and their administrations come and go. Their names rarely appear in the media. The work they do is usually in the background. They might not even meet with contractors in person on a regular basis — and yet their power is undeniable. It is easy to fall into the trap of calling these people “bureaucrats,” but that word is a cynical stereotype that can lead to problems on its own.

Smart executives know that, as a general rule, the best way to approach a problem with the Federal Government is to start at the lowest rung possible and work your way up, rung by rung. Can you start at the top? Sure, but there are reasons you might not want to do that: First, and perhaps most important, one of the biggest mistakes you can make is to go over someone’s head, or around him, without giving him a good-faith opportunity to address the problem. This could lead to embarrassment for the employee, or worse, and he will not soon forget the source of the problem, even as he rises through the ranks.

Second, if you happen to know someone who is in a powerful position, give some careful thought as to whether you really want to ask her to intercede on your behalf. Her staff members are not stupid — they will know when their boss is being asked to do something because of a relationship and not based on the merits, and that can lead to loss of morale, gossip, and perhaps whistleblowing. If you were really a friend of this official, why would you ever put her in this position? Phrased another way, the fact that you have a close personal relationship with someone might mean that they are radioactive to you. There are too many ways this kind of thing can go wrong, and your competitors are not going to be objective in their analysis of what actually happened. Instead, start at the bottom and work your way up if necessary. If the matter has to go to your friend or relative, she should probably recuse herself from dealing with it.

Third, don’t count on your congressional representatives to carry your water for you. Many people naively believe that a letter or inquiry from their representative or senator will strike fear into the heart of the agency, thus achieving their goals without spending a penny on a lawyer. There is no doubt that having the right politician in your corner can be a big help, but if that is the only thing you have going for you, you have a problem. Members of Congress are certainly going to do what they can, within proper boundaries, to help a constituent, particularly if their efforts can lead to more jobs in their state or district. If you have supported an elected official financially, again within the legal limits, you will normally be treated politely and efficiently. But Federal agencies are well-versed in the ways of Washington, and they have professional personnel who deal with Congressional staffers daily. They know how to handle Congressional inquiries, and they aren’t going to panic just because your letter to their agency head shows courtesy copies have been sent to the President, the Vice President and all the elected officials from your state. When they do receive a Congressional inquiry, they initiate a process that enables the agency head to respond to the elected official in a timely and informed way. This process involves going to the very people you are accusing of skullduggery and asking them to prepare a response to your letter. This means that these agency personnel now have to stop the work they are doing and turn their attention and energy to your complaints — another thing they will not soon forget.

Although there are situations when political intervention can be effective, on most occasions it is going to end in a note from your representative or senator enclosing the agency’s response and thanking you for your inquiry. The only thing that will have changed is that you will now have alienated several key agency personnel. This is where the raw power of a Government employee can come into play: Because of the broad discretion accorded to Government officials, they have the ability to make countless decisions without telling anyone about them — not exercising an option or ignoring a request for an equitable adjustment, a waiver request, or a personnel change under your contract, to name a few. In other words, they have the ability to turn off your faucet without telling you, and it could be quite a while before you realize you have been damaged.

While there are exceptions to every rule, this commandment involves your obligation to work with your Government customers in good faith, avoiding anything that would cause them to lose face. Dealing in a straightforward and transparent manner with your Government contacts and developing solid business relationships with them are vital to your success. Going over their heads or around them without giving them a fair opportunity to address the problem will create risks that could harm both you and your company.

If you are new to the series, we welcome you to check out Commandments One and Two.

Written by:

Thompson Coburn LLP

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