Let's all show a little bit more self-restraint
Fairness and respect are useful principles for resolving government contract problems.
Aleksandr Solzhenitsyn had it right. Even while knocking out the moral underpinnings
of the Soviet Union, he was a critic of Western society's overly legal focus. Though many
of his points missed the mark, the following passage deserves a look:
"Western society has given itself the organization best suited to its purposes,
based, I would say, on the letter of the law. . . .
"People in the West have acquired considerable skill in using, interpreting and
manipulating law, even though laws tend to be too complicated for an average person to
understand without the help of an expert.
"Any conflict is solved according to the letter of the law, and this is
considered to be the supreme solution. If one is right from a legal point of view, nothing
more is required, nobody may mention that one could still be entirely right, and urge
self-restraint, a willingness to renounce such legal rights, sacrifice and selfless risk.
It would sound simply absurd.
"One almost never sees voluntary self-restraint."
The thrust of recent policy as manifested in three years of procurement reform is
consistent with Solzhenitsyn's critique that we have gone too far in granting rights to
the letter of the law.
We now have a system of best-value procurements and rely on past performance as an
interpretive factor that lets officials pretty much pick the vendor they view as best
qualified. As a policy matter, we have enshrined alternative dispute resolution as a way
to quickly and reasonably resolve bid disputes. Now the challenge is to ingrain these
Voluntary self-restraint should require a vendor to avoid seeking the overturn of a
contract award because of a highly technical violation of statute or regulation. But it
should also require that agencies likewise not take refuge behind rules and regs if they
make a mistake.
Stephen M. Ryan is a partner in the Washington law firm of Brand, Lowell & Ryan.
He has long experience in federal information technology issues.