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Good Afternoon,

I am currently a contract attorney for a DOD organization and I am completing a military education course called "Intermediate Level Education." One of the requirements of the course is to post a topic on a reputable blog on any issue relating to our duties. As such, I am interested in comments from government contracting personnel regarding their views/experiences/opinions on any issues related to the agency attorney's role in the contracting process. For example, I am curious to know what the major complaints are in terms of relationships between contracting officers/contracting specialists and the agency attorneys assisting them. Further, I am interested in your thoughts on ways that you believe that the system/relationship could be improved. For example, I know that one of the main friction points is the time that it takes for a particular contracting action to be reviewed by the legal department. Typically, the contracting office is frustrated that the review of a particular action is taking so long, while the attorneys are often frustrated with unreasonable expectations of legal review times and/or receiving the action or issue at a very late stage in the process. I am curious to know, for example, whether contracting officers believe that too many contracting actions require a legal review and, perhaps, that the lawyers' time could be better spent focusing on fewer (but more important) contracting actions. Again, however, I open this topic up wide open for any opinions on this general theme.

i apologize if this topic has already been covered in another string.

Thank you.

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My short answer is that the quality of legal services provided to a contracting office depends on the attorney assigned. Is he/she actually a contracts attorney? Has he/she taken the DAU or other contract law courses for an overview? Does he/she understand the FAR, DFAR, AFAR, US Code, etc? Does he/she understand OMB guidance regarding fiscal law and contracts? Oftentimes the legal advisor to contracting is performing other duties as well, in fact, being legal advisor to contracting may be the least of his/her duties.

For example -

The attorney/advisor for the Contracting office at Ft Benning is TOP NOTCH. His reviews are thorough and his edits are always on point. The reviews are done in a timely manner. He provides instruction and references so the KS and KO can learn. He is considered an important part of the contracting community and is well respected.

The attorney at another installation, who shall be nameless in this blog, is the polar opposite. His reviews were shoddy and frequently amounted to no more then grammatical errors. His review was just a required signature and we all knew it.

Currently, we are required to have a legal review on any action over SAT. This includes initial awards or modifications. I agree with this. We are also permitted to request a legal opinion on less than SAT if the acquisition is unusual or complicated. The turn around time for a legal review is usually less than 5 days. It is important to remember to include legal reviews in your acquisition timeline. There is more than 1 attorney advisor and who is assigned depends on the subject matter; i.e. construction, A/E, Economy Act, services or supplies. I find this beneficial since the contract review load is spread out among 4 separate attorneys each of whom hold their own knowledge base.

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On ways to improve the relationship, although I am no longer a government employee, strongly recommend a meeting or teleconference between Legal and Contracts to discuss items under review.

Even before Legal reads all the way through a review package, Contracts can provide background and context to help Legal more quickly grasp the situation and better understand issues or concerns. Contracts can provide a summary of issues or concerns, and steps to resolve or mitigate them. Legal can ask questions or raise points that Contracts either may not have considrered, or can brief Legal on how they were addressed.

The process should include an opportunity for real dialogue that makes the difference between individuals working with the same documents and individuals working together on those documents.

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Guest Vern Edwards
I am interested in comments from government contracting personnel regarding their views/experiences/opinions on any issues related to the agency attorney's role in the contracting process... I am curious to know what the major complaints are in terms of relationships between contracting officers/contracting specialists and the agency attorneys assisting them... I am interested in your thoughts on ways that you believe that the system/relationship could be improved.

Here is a thought. More a question, really. What is the purpose of routine legal review? What is "legal sufficiency"? I have been in this business for almost 40 years, as a DOD CO and as a chief of a DOD contracting office, and I have never been entirely clear on the purpose of routine legal review or the meaning of legal sufficiency.

I understand legal review of CO final decisions under the Disputes clause. No problem. I understand legal review of the source selection file in reaction to a bid protest. No problem there, either. But what is the purpose of routine legal review? Is it quality assurance? Is it, for instance, to ensure that the CO has adequately justified the decision to use a specific contract type or a determination of price reasonableness? If so, what qualifies an attorney to make such a review? What did they learn in law school that qualifies them?

I can think of no better way to improve relations between attorneys and COs than for attorneys to explain and justify legal review. I know when and why I should consult an attorney on a specific legal issue. I just don't know why I must routinely submit my file to the legal office when I don't think I need their help. It's insulting. I run a business now. I make decisions every day. I have had the same attorney for 20 years, but I don't check with him about routine business matters. Why should COs submit routine transactions for legal review just because they exceed a certain dollar value?

You say that attorneys are "assisting" COs and contract specialists. Really? Is that what they are doing in routine review? Assisting how? Are they assisting or checking up on them? If the latter, then don't expect COs to be happy about it.

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From the dark side, it irks me when lawyers word smith a document (its okay to offer suggestions to improve the content) or when lawyers opine on business or marketing strategy. The best lawyers stay within the lines, they don?t decide or say what to do, but provide an assessment of the legal risk associated with a particular course of action.

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Here is a thought. More a question, really. What is the purpose of routine legal review? What is "legal sufficiency"? I have been in this business for almost 40 years, as a DOD CO and as a chief of a DOD contracting office, and I have never been entirely clear on the purpose of routine legal review or the meaning of legal sufficiency.

I understand legal review of CO final decisions under the Disputes clause. No problem. I understand legal review of the source selection file in reaction to a bid protest. No problem there, either. But what is the purpose of routine legal review? Is it quality assurance? Is it, for instance, to ensure that the CO has adequately justified the decision to use a specific contract type or a determination of price reasonableness? If so, what qualifies an attorney to make such a review? What did they learn in law school that qualifies them?

I can think of no better way to improve relations between attorneys and COs than for attorneys to explain and justify legal review. I know when and why I should consult an attorney on a specific legal issue. I just don't know why I must routinely submit my file to the legal office when I don't think I need their help. It's insulting. I run a business now. I make decisions every day. I have had the same attorney for 20 years, but I don't check with him about routine business matters. Why should COs submit routine transactions for legal review just because they exceed a certain dollar value?

You say that attorneys are "assisting" COs and contract specialists. Really? Is that what they are doing in routine review? Assisting how? Are they assisting or checking up on them? If the latter, then don't expect COs to be happy about it.

Score a grand slam on this one Mr. Vern...or a "LIKE" on facebook. In the past, I have seen some of the most ridiculous comments on contracts and related documentation, when they return from the so called "legal reviews". We used to call them "grammar checks"!

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There are really two reasons for legal review - an agency review "clearance" process and obtaining advice. The former is just part of saying "okay" to release of a solicitation or award of a contract and might include a contract review board as well. Often the legal review is part of the "got you" where the result is a memo with pages of comments. This usually results in a finger pointing exercise where the contracts office says legal takes too long and legal says they aren't provided enough time. Legal is often correct when you see that the contracts office has the action for months and suddenly wants legal output in a couple days.

This kind of situation usually results from senior management being concerned about poor quality of contract actions. The fix is more thorough reviews. The post above about legal must review all actions above the SAT is an example. I'm sure that is a waste of time for everyone.

The second reason for legal review is a good one and that's obtaining expert advice and opinions on a planned course of action. Legal counsel should be brought in when needed and should be advised along the way on what's happening. Very little, if anything, should be a surprise to the attorney when their advice is asked needed.

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Vern: Excellent comments. This is exactly the type of dialogue I am interested in opening up with my post.

In response to your question, I think there are two ?main? purposes for a legal review. The primary purpose seems to be to ensure that the agency?s contracting action is not violating statutes, regulations case law and/or policies. Clearly, an attorney is not the only individual that can spot such issues, but an experienced contract attorney should be able to spot issues that may have been missed by the contracting office.

I would argue that the secondary purpose is quality assurance ? as you indicated. I have reviewed contracting actions from multiple organizations and the truth is that the quality of work ranges from the impeccable to the almost unreadable. In my view, however, this quality assurance work should be performed within the contracting office (i.e. peer reviews) or by the contract policy office (if possible). I would agree that there is nothing special about an attorney performing the QA-type work in preference to a competent contracting professional.

As to your question of the meaning of ?legal sufficiency,? I don?t know if there is a truly doctrinal definition. (I?d have to research that a little more). I interpret it to mean that there is positive authority from a fiscal law perspective and that the action is in accordance with (and not violative of) statutes, regulations, case law and policies. I think that is separate and apart from ?business counsel.? As a matter of fact, AR 27-1 ?Judge Advocate Legal Services,? contains the following language at Para 15-4(d)(2):

?Contract lawyers must be sensitive to the difference between legal advice and business counsel. An opinion that an action is not legally sufficient has a significantly different impact than suggesting that it is not a good idea. Accordingly, contract lawyers must differentiate legal opinion from business counsel for themselves and their clients.?

Your use of the term ?routine? legal review gets to the heart of the issue regarding the efficiency and wisdom of the current system. Your post seems to indicate, however, that the attorneys are requiring the reviews. In reality, it is typically set by policy and the policy is based largely on the dollar amount of the contracting action. To the degree it is ?insulting,? the insult is stemming from policy, not from the attorneys. That is, the ultimate question here is how do we set up a system that best utilizes legal reviews? The problem is that if we take away all judgment from KOs and force them to submit every action over $XXXX to the legal office, we will clearly waste the time of the customer, the contracting office and the attorney. For example, simple options exercise over $XXXX should not need a legal review simply because it crosses an arbitrary dollar amount. Unfortunately, such routine actions are constantly sent up for a legal review (in accordance with policy) and have to find their way into the legal queue.

Perhaps this can?t be solved through even the best written regulation or local policy. I guess the best answer is that the contracting officer and the contract attorney have to forge a strong working relationship based on mutual respect to make the system work intelligently. That allows them to communicate freely and candidly about the issues that really need a legal eye and those that do not. I agree with you that contracting officers should generally be able to use their judgment in determining when an action truly needs a legal review. As it currently stands, too much attorney time is wasted on matters that don?t require an attorney?s review and too little attorney time is reserved for those issues that truly need a lawyer?s analysis.

To anyone who hasn?t read it, I recommend reading Chapter 15, ?Contract Law Attorneys,? of AR 27-1. I think that chapter reflects some meaningful thought regarding the relationship between contracting officers and legal counsel. (I recognize that this is Army specific).

Vern - a sincere thank you for your thoughtful comments.

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Guest Vern Edwards

Oyster:

Here are some questions for you to ponder as you think over the issues that you have raised in this thread. They come from the perspective of an experienced contracting officer.

When a CO places a contract file before an attorney for legal review, he or she understands that the attorney must determine whether the file is legally sufficient. But we do not know what that means, exactly.

We know that the attorney will look at various documents in the file. Which ones? What is the scope of the review? Are there established, written guidelines for the scope of the review, or is each attorney free to determine scope independently? Does the attorney use a checklist? Do all of the attorneys in the office use the same checklist? Will they share it with the CO? If each attorney is free to do his or her own thing, who oversees them to make sure that they stay within reasonable boundaries?

When the attorney is looking at the file, are there common, written standards for legal sufficiency, or is each attorney free to establish his or her own standards? We know that the standards must change with the size and scope of the contract action, but are there common, written standards for various categories? If so, will the attorneys share them with the CO? If each attorney is free to do his or her own thing, who oversees them to make that their standards are reasonable? How much subjectivity is professionally acceptable?

If there are no common checklists and standards, then how do you manage your review process? How do you perform quality assurance on your own work? How can you assure us that attorneys do not use legal sufficiency to impose their own business values and judgments about matters that fall within the discretion of the CO? Putting it in terms of the Army Staff Judge Advocate regulation, page 44, how do you ensure that individual attorneys don?t abuse their role by using legal sufficiency as a way to impose business counsel, thereby crossing the line between business counsel and legal counsel? I have personally seen lawyers withhold a finding of legal sufficiency in order to bully contracting officers into yielding to them on matters of business judgment, such as choice of evaluation factors in source selection. Do you review your own reviews to prevent such abuse?

These are the thoughts of a government contract specialist of long experience. I know that many lawyers have had to go beyond the role of legal counsel in order to make up for a lack of knowledge and skill within the contacting officer corps. I know that many of them feel put upon because of that, and I think that they have every right to feel that way. But maybe contract attorneys should be more forthright in telling the contracting officer corps that it needs to get its act together and that as lawyers they do not have the time or the inclination to do the COs' jobs for them.

In any case, contract attorneys should ask themselves how they would come out if someone outside of the legal office was reviewing their legal reviews. Do they think that, since they are professionals, their work should not be subject to review by outsiders to their profession?

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I don't really have a problem with the requirement for legal review, because I have learned alot from the attorneys over the years. The problem I have is attorneys forget that they are providing advice. If we disagree, they tend to withhold their endorsement (conditioned or otherwise). I believe that because they typically aren't challenged, they begin to believe they have the final say and expect their recommendations to be incorporated without question.

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Guest Vern Edwards

It is commonly said that the purpose of legal review is for an attorney to give advice to a CO. But I think the truth is that while contract law attorneys recognize that part of their job is to give advice to COs, many if not most think that their real client is the agency, the agency head, and the agency's senior managers, and that their real mission is to protect those clients from CO bad judgment and incompetence. I think that view is consistent with the imposition of routine legal review. If it were otherwise, COs would be told to go to legal only when they want advice. If a contract law attorney disagrees with a CO's judgment over a matter the attorney thinks may be of real consequence, the attorney is likely to withhold legal clearance and go over the CO's head.

The FAR notwithstanding, the notion that very many things are left to CO judgment and discretion is largely a fiction. While it may be true for some COs in some agencies under some circumstances, it is not generally true. In the end, if a senior manager is faced with an attorney who says that something is not a good idea and a CO who says that it is, nine times out of ten the manager is going to go with the lawyer. That is not because they right nine times out of ten, but because they are held in higher regard. I think that COs have no one to to blame for this but themselves.

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I would join with Vern. My expereince as a CO on legal reviews was the tendency of the attorney to question my business decision and business judgement. I found this most of the time when there were no legal issues raised so the attorney would move into "my lane" and question my business decision being made. I also agree with Vern of the lack of standard and consistent reviews within the Legal Office. My Procurement Center used a checklist for various actions and I found this beneficial but the Legal Office did not have any such tool. I have also found many attorneys look for "perfect" when "good" would suffice. Anyway this is my view and I am sure other current and former COs would find other issues but this is what I experienced. I hope this helps with your class! It might be interesting if you come back after the class and share the outcome of what was found.

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