Second Commandment of Government Contractors: Thou shalt study thy adversary

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.”)

The movie “Patton” contains many memorable scenes, but one that will always stay etched in my memory is where the great German field marshal Erwin Rommel, the Desert Fox, begins his retreat after being beaten by Patton at El Alamein. As the German tanks turn and flee, Patton, played by the inimitable actor George C. Scott, screams, “Rommel, you magnificent ba$#ard, I read your book!” Very few of the things we do in the Government contracting world will involve the kinds of stakes that were associated with this famous World War II battle, but Patton’s rant is evidence that knowledge of your adversary is a very valuable weapon.

A contract negotiation is not a battle between enemies fighting to the death. Instead, it is an opportunity for two entities with competing interests to negotiate an agreement that makes sense for both sides. While it is true that the two sides have different interests and positions, the point of most negotiations is to reach a deal that the parties can live with — and one that will require the cooperation of both parties from beginning to end if it is to be fruitful. Smart executives know that this contract, this negotiation, could lead to other contracts and other negotiations. So while it is perfectly acceptable to be firm and to stake out various positions, experienced negotiators know they should avoid a take-it-or-leave-it position even if that is the position from which they are dealing. They also know that the more they know about their opponent, the better they can prepare.

When I use the term “negotiation” in this article, it could include everything from the negotiation of a sole-source, multi-million-dollar contract to a meeting with a contracting officer to discuss a waiver or a change order. Regardless of the situation, your goal is to persuade your customer that something needs to be done, that the way things currently stand will not be satisfactory, or that something needs to change. Customers are not always receptive to such arguments, so your preparation process, which we discussed in the First Commandment, must include finding out about the person or persons you need to persuade. In street terms, this is known as “getting the book” on someone.

How can we do this?  First, if we do not already know the answers to these questions, we need to find out where this person fits within her organization. What is her job title? To whom does she report? Who will she have to persuade if she reaches an agreement with you? Before the Internet took over our lives, we would obtain this information by looking at an agency’s organizational chart, which would provide a bird’s eye view of the agency and was a wonderful starting point. We would then contact people within our own organization to find out if they knew the person and, if they did, what the person was like. If we knew someone outside our organization who might have dealt with them, we would contact them as well, pursuing the same line of questions.

This process takes time and effort, but it is well worth it. Many years ago one of our clients was having a miserable experience with a civilian agency. We tried to resolve the problem at as low a level as possible (more on this in the Third Commandment), but we got nowhere. We worked our way up the ladder, all to no avail, and finally decided we needed to meet with the Director of Contracts, a very experienced executive who had just joined the agency after many years at the Pentagon in senior contracting positions. I had never met this gentleman, but I had contacts who had worked with him for years. I spoke to several of them, and their views were unanimous: He was very smart and very tough, but he prided himself on having a reputation for fairness. In preparing for our 30-minute meeting, we focused on fairness, and we made sure to mention that special word frequently during our time with him. A few days after that meeting we had a favorable resolution. There has never been any doubt in my mind about the importance of this crucial step in preparing for that meeting.

This experience is a reminder of how valuable a tool a telephone can be. Of course with the advent of the Internet and the capabilities provided by e-mail and social media, these can be valuable resources as well. I have been stunned by what people will post online. While you will want to tap these resources when getting the book on an upcoming opponent, I would be cautious about using e-mail for this background research. Once an e-mail is sent, you have lost control of it. One of the recipients of an e-mail asking for information about your upcoming opponent might, perfectly innocently, forward it to a friend or a colleague who might forward it to your opponent without giving it a second thought.  Now you have a problem. While it is impossible to prevent all such leaks from occurring, using a phone rather than e-mail will reduce the possibility of it happening at all.

The information you need is out there. You need to figure out the best way to get it, and then you need to figure out how to use it. It is always possible that someone will act out of character or do something surprising, but this important step in the preparation process will generally prove to be very valuable.

Written by:

Thompson Coburn LLP

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