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This is purely a philosophical question. I'm a relatively new user, but I've been involved in government acquisitions for about 8 years now, always as an attorney. One of my biggest frustrations has always been a reluctance on the part of my clients (the contracting officer, the program manager, etc.) to bring issues to me EARLY in the process. As I read the posts in the forum, so many of them seem to me the kinds of questions that could and should be asked of the program counsel or contract attorney. I know I would have been ready, willing and able to help my clients work through them. Not that I'm an especially talented or knowledgeable attorney, but that's what my job is.

So, here's my question to those of you who work in aqcuisition: Are you asking these same questions of your attorneys? If not, why not? Is it because you don't have a program counsel assigned? Is it because you're not comfortable with their competence? Is it because you're afraid you won't like the answer you get? Are they non-responsive or hard to work with? If you're in a working capital or revolving fund, is it an issue of cost?

Obviously, I don't want anyone to reveal privileged information nor am I trying to start a frenzy of "let's kill all the lawyers." But I sometimes sense a real reluctance to bring attorneys into the process, and I'm really interested in why.

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Guest Vern Edwards

The bigger philosophical question is: What should acquisition people go to an attorney about? What does an attorney bring to the process?

I find the concept of legal review to be obnoxious, if legal review is nothing more than a QA check on the work of the CO. A CO should not need an attorney to check his work. He should not need an attorney to tell him whether to include a particular clause in a contract. COs should not go to an attorney to find out what FAR says about some process. COs are supposed to know the FAR, and I see no reason to expect that an attorney, qua attorney, would know the FAR any better than a competent CO. COs are responsible for complying with the rules (see FAR 1.602-1(B)), and a CO who does not know the rules about what he or she is doing is incompetent. A CO who must ask an attorney whether she must obligate funds to cover the minimum quantity of an IDIQ contract should not be a CO. Neither should a CO who must ask an attorney whether a prospective contract change would be within the general scope of the contract, or what is the proper measure of an equitable adjustment.

What would I go to an attorney about? I would go to ask for review of a final decision on a claim, or a decision to terminate a contract for default. I would go to an attorney if a contractor raises a complex legal issue that will require extensive case law research. For instance, if an auditor accused my contractor of defective pricing and the contractor claims that the data in question are not cost or pricing data, and if it was a close question, I would go to an attorney for advice about what the courts have found to be cost or pricing data. But I would not go to an attorney in order to decide whether I have adequate price competition. I would not ask an attorney to review the evaluation factors or proposal preparation instructions in my RFP, but if an offeror accused me of failing to evaluate proposals in accordance with the RFP I would ask an attorney to review my evaluation documentation and source selection decision document.

In short, I see no reason to see an attorney about routine matters or to ask him or her to check my routine work. I think COs should see an attorney when they need legal advice. That means that some COs will need to see an attorney more often than others, depending on their level of competence and the nature of the work they are doing.

In my experience, most government contract attorneys are generalists. They don't necessarily know more about particular issues than a competent CO. When something comes up, they have to research the matter. I have found their greatest asset o be in the way that they have been trained to think about and analyze issues of law. When an issue gets sticky, that's when I want to see my lawyer. Not otherwise.

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'K-Law Atty' - I totally agree with Vern (surprise) and would like to add some observations from someone who has her boots on the ground. Local policies differ - Where I am currently located, any award over $100K or any option exercise over $100K must be legally reviewed and found sufficient before release. Where I was located - the dollar threshold was $550K. Where I was located the attorney advisor was well versed in many aspects of contract law and provided comprehensive advice in a a timely manner. Where I am now, the attorney advisor does little more than make spelling and gramatical suggestions/corrections. As a contract specialist, I am perfectly capable of determining what is IAW policies and procedures of the FAR and other guidance. My contracting officer is perfectly capable of making that determination as well. My contracting officer approached our legal advisor with an interpretation question and the response he received was "That is a contracting officer determination." As the contracting officer he was looking for legal advise, not a reinteration that it was ultimately his determination.

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So, here's my question to those of you who work in aqcuisition: Are you asking these same questions of your attorneys? If not, why not? Is it because you don't have a program counsel assigned? Is it because you're not comfortable with their competence? Is it because you're afraid you won't like the answer you get? Are they non-responsive or hard to work with? If you're in a working capital or revolving fund, is it an issue of cost?

In my experience, I've found Government attorneys to be a mixed bag. Some are great--they know the statutes, the regulations, and the relevant case law. They provide good advice and know what they're doing. On the other hand, I've also encountered some that stuck their nose where it didn't belong, were clueless, or incompetent. I can remember one lawyer having a fit that I had put a schedule in the source selection plan. Another insisted that I needed a Part 6 J&A for an $8,000 purchase order. Yet another advised me that it was illegal to evaluate cost realism by using estimated quantities (he was only familiar with using sample tasks). My students come to me with questions about what their lawyers told them all the time. I can remember a recent student asking if it was true that clarifications had to be posed in the form of a question (something her lawyer told her). I've had more than a few students who were shocked to find out that changes within 10% of the contract price were not necessarily within the scope of the contract (also what their lawyers taught them).

I've learned not to assume competence in a Government attorney. If I were a CO, I would only seek counsel if I needed it, and I would only seek counsel from an attorney that I had confidence in.

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I agree with all of the above responses! I have worked with some outstanding attorneys who knew contract law, gave excellent advice and were a jewel in the crown of the command. Others were basically overpaid procurement analysts and english composition professor wanna-be's, who could not tell me if a clause, provision or instruction was appropriate, but sure could tell me if I had some bad grammar in the statement of work!

As far as involving an attorney into the contracting process early, I have when I had a competent attorney who understood what I needed and his or her role as a legal advisor. I avoided them like the plague when they were more interested in my spelling abilities, as those type only feel they are contributing when they can tear down the other members of the team.

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I have a lot of confidence in all of the attorney's I've worked with in my office. They know the procurment laws and regulations. I try to avoid going to them because they are flat out buried with work and I learn a lot by trying to figure something out. There really is a lot of information out there. Even on important matters we need their input on they often have to juggle a lot to accomodate workloads. I'm guessing a good portion of their workload is ultimately things they shouldn't have to address.

I think there is an attitude that you don't go to them unless you know the answer you are going to get and like it (to me that begs they question, "Why go to them at all then and waste their time?" I feel like a lot of people go to them for issues they think may invite a protest or if they think they are going to get protested just so the attorney is aware of what is going on and can comment since they'll be defending it and it's usually easier to fix any problems earlier rather than later.

There is some fear, not me personally but in my office generally, about defending a decision you make that may be inconsistent with advice from an attorney (my take is if you feel that nervous about your decision then you shouldn't have concluded the way you did because if you had adequate, strong grounds for why you did what you did you shouldn't be nervous).

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This is purely a philosophical question. I'm a relatively new user, but I've been involved in government acquisitions for about 8 years now, always as an attorney. One of my biggest frustrations has always been a reluctance on the part of my clients (the contracting officer, the program manager, etc.) to bring issues to me EARLY in the process. As I read the posts in the forum, so many of them seem to me the kinds of questions that could and should be asked of the program counsel or contract attorney. I know I would have been ready, willing and able to help my clients work through them. Not that I'm an especially talented or knowledgeable attorney, but that's what my job is.

So, here's my question to those of you who work in aqcuisition: Are you asking these same questions of your attorneys? If not, why not? Is it because you don't have a program counsel assigned? Is it because you're not comfortable with their competence? Is it because you're afraid you won't like the answer you get? Are they non-responsive or hard to work with? If you're in a working capital or revolving fund, is it an issue of cost?

Obviously, I don't want anyone to reveal privileged information nor am I trying to start a frenzy of "let's kill all the lawyers." But I sometimes sense a real reluctance to bring attorneys into the process, and I'm really interested in why.

***********

Here's my two cents: I have over twenty years as a contracting officer and value the service a legal advisor can provide. Having said that, I am so turned off by the contract legal advisors. In my last assignment, the legal advisors (solicitors, etc) were more grammer-checkers than anything. Basic contract concepts needed to be explained. Now, in this current position, the legal advisor wants a letter sent with the info and question needing legal advice. A written letter!!! Facsimiles are not acceptable, nor are emails. I don't understand this unless it is to justify their existence (back charge via job order, etc...)and nothing more. I have not met a contracting officer lately who has time to get their solicitations out and perform proper admin, resolve contracutal issues, etc. let alone time to draft a letter when needing legal advice. I often go to the Cibnic and Nash references, this forum, and other resources before I even think about asking the solicitor. ....they tend to add to my burden more often than not.

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Just today a fellow 1102 was embarassed by an attorney after she initially forgot to foward a copy of a document to his office. She herself remedied that mistake and forwarded a copy within a day to that office once she discovered her error. In return, the attorney broadcast his displeasure over the mistake in a very unprofessional manner, and broadcast it to many people who were not part of the process.

In my opinion, that is why many do not want to deal with government attorneys; some of them have a self important attitude that is not something most people care to deal with on a less than mandatory basis.

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I found two reasons to develop good relationships with the right attorneys. One is when agencies have a procedural requirement for legal review of procurements. It's not fair or efficient to hit an attorney up cold with an action for a quick review unless it is very routine. You need to keep them advised of actions, particularly on the tough issues, so they are aware of everything and can timely respond.

The other is as a resource. I usually had a handful of knowledgeable and experienced people to bounce ideas off of and to get their input. This included an attorney. I considered these people to be my professional friends and they freely provided their advice and assistance. They both got me out of some messes but more importantly helped make the acquisitions better with their ideas and suggestions.

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I have only met one attorney in my 10 years of contracting that was worth his salt. He retired about 5-6 years ago. The others that I have dealt with were incompetent. They didn't know contracting law, wanted to rewrite full text clauses, check grammer, and gave bad advice. I avoid the lawyers like the plague.

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