August Posted August 10, 2011 Report Share Posted August 10, 2011 Can a government negotiator tell a contractor they are negotiating with that the government is going to "talk to Company X" who is one of their competitors, for the purposes of implying the government has an offer from Company X, and the government is negotiating with Company X? When the truth is they don't have an offer from Company X? I believe it is unethical, but I can't find a reference that speaks to such behavior. Link to comment Share on other sites More sharing options...
napolik Posted August 10, 2011 Report Share Posted August 10, 2011 Can a government negotiator tell a contractor they are negotiating with that the government is going to "talk to Company X" who is one of their competitors, for the purposes of implying the government has an offer from Company X, and the government is negotiating with Company X? When the truth is they don't have an offer from Company X?I believe it is unethical, but I can't find a reference that speaks to such behavior. I see nothing unethical about using the threat of competition as a negotiating tactic. I might not specifically mention company X, but I would refer to the contractor's competitors: "Listen Mr. Contractor, if I can't get a deal from you, I will do my best to negotiate a good deal with your competitors - Companies X, Y and Z". I would be more concerned with losing my credibility in the contractor's eyes. If the contractor knows that Company X is not competing, you undermine your current and future negotiating positions. Link to comment Share on other sites More sharing options...
Guest Vern Edwards Posted August 11, 2011 Report Share Posted August 11, 2011 Don't tell a lie! Don't say that you have an offer from Company X when you don't, or that you're talking with Company X when you're not. Link to comment Share on other sites More sharing options...
August Posted August 11, 2011 Author Report Share Posted August 11, 2011 It seems obvious that we should never lie, yet there are many who think it's an appropriate negotiating strategy, and defend themselves by carefully crafting their language/actions so they can say it wasn't a lie. (I did talk to Company X, although it was about something unrelated to this procurement.) There are many honest ways to inspire a competitive atmosphere. But for those who choose to walk on the dark side, are there any regulations or cases that might inspire them to do otherwise? The closest thing I can find it FAR 3.101-1. But some still believe that misleading a contractor about the truth of the situation is a behavior that does not violate the direction to conduct business in a "manner above reproach", nor does it cause a concern for breeching "an impeccable standard of conduct". They believe they are serving the governments best interests and are getting the best deal with their techniques. I don't see anything in TINA that seems to speak to this. Is there anything more specific in regulations or cases that you know of? Link to comment Share on other sites More sharing options...
Guest Vern Edwards Posted August 11, 2011 Report Share Posted August 11, 2011 Off hand, I don't know of any regulation that says that the government should not lie to a contractor during negotiations. But why do we need a regulation? You can't take responsibility for the negotiating behavior of others. They will do what they will. Worry about yourself. If you think lying to a contractor is wrong, then don't lie, regulations or no regulations. As for cases, the courts usually consider lying to be an act of "bad faith." There are many, many cases in which government personnel have been found to have acted in bad faith, but I don't have time to look one up for you. Maybe someone else will do it for you. Of course, you could try doing it for yourself. Link to comment Share on other sites More sharing options...
August Posted August 11, 2011 Author Report Share Posted August 11, 2011 Point taken. Thanks Link to comment Share on other sites More sharing options...
Weno2 Posted August 11, 2011 Report Share Posted August 11, 2011 Can a government negotiator tell a contractor they are negotiating with that the government is going to "talk to Company X" who is one of their competitors, for the purposes of implying the government has an offer from Company X, and the government is negotiating with Company X? When the truth is they don't have an offer from Company X?I believe it is unethical, but I can't find a reference that speaks to such behavior. Link to comment Share on other sites More sharing options...
Weno2 Posted August 11, 2011 Report Share Posted August 11, 2011 Can a government negotiator tell a contractor they are negotiating with that the government is going to "talk to Company X" who is one of their competitors, for the purposes of implying the government has an offer from Company X, and the government is negotiating with Company X? When the truth is they don't have an offer from Company X? I believe it is unethical, but I can't find a reference that speaks to such behavior. Don't assume you're working in a vacuum. Contractor's talk. And if Contractor A talks to "X" and tells "X" about your conversation, your credibility's shot. Not only with "A", but with "X" and any other contractor that speaks w/"A" and "X". Link to comment Share on other sites More sharing options...
Jacques Posted August 11, 2011 Report Share Posted August 11, 2011 I agree entirely with Vern. Chapter 7 of the AFIT/FAI Contract Pricing Reference Guides (mentioned in FAR Subpart 15.4) plainly does not advocate that government COs engage in what it calls feinting. However, as Vern points out, making a prescriptive rule would not make it self-enforcing. The note to Uniform Commercial Code section 1-203 & Restatement (Second) of Contracts, sec. 205, comment c, point out that the duty of good faith and fair dealing technically does not relate to the formation of a contract. Dakota Tribal Industries v. U.S., 34 Fed.Cl. 295, 298 (1995). Accord, The Duty of Good Faith and Fair Dealing: An Emerging Concept?, 2 N&CR ? 78 (11/89). However, a fair chunk of pre-contractual bad faith may be redressed under rules regulating fraud, duress, and promissory estoppel. Also, the Nash & Cibinic article points out 6800 Corp., GSBCA 5880, 83-2 BCA ? 16581, where the board treated the negotiation of a follow-on contract as subject to the duty of good faith and fair dealing. Link to comment Share on other sites More sharing options...
styrene Posted August 12, 2011 Report Share Posted August 12, 2011 Wouldn't this be a case of simply reminding the vendor that this is a competitive contract and remain silent on the number of proposals received or identities of other offerors, since one wouldn't provide that information to a vendor during negotiations anyway. Link to comment Share on other sites More sharing options...
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