FEDERAL CONTRACT LAW

In explaining federal buying, we can learn, too

Joseph J. Petrillo

A delegation from the People's Republic of China is touring the United States to find out how our government buys what it needs. As a market economy emerges in China, the government must do more contracting for goods and services and less requisitioning from state-owned concerns.

All this is somewhat new to the mainland Chinese, so they are casting about for models to emulate and avoid. The delegation consists mostly of legislators whose committee has drafted a procurement bill. Its chairman thought it would be fitting for officials from the largest developing nation to find out how the largest developed nation accomplishes government contracting.

Delegates are making the rounds in Washington, visiting lawmakers, judges at the Court of Federal Claims, and officials from the General Accounting Office, Office of Federal Procurement Policy, and U.S. Trade Representative. I met them in a session organized by the law school at George Washington University.

It's hard to tell what aspects of our system will work in China. So much of that country's system is both very new and dissimilar to ours.

Some aspects of the Chinese legal system are hard for a foreigner to fathom. Apparently, it is not uncommon for the Chinese to develop regulations first and statutory law later. We do the reverse, but not all folks write from left to right, either. A reason for the Chinese practice might be rooted in their experience, but without an understanding of their history and traditions, we are baffled.

The same is probably true of our system as seen through Chinese eyes. A mere description of the American method of procurement doesn't do it justice. Almost every aspect of the system has a story behind it. Perhaps it was a safeguard enacted to prevent a specific scandal from happening again or to avoid losing a legal decision.

Various American commentators wrestled with what the ultimate goals of a procurement system should be. One study uncovered eight separate goals, ranging from uniformity to wealth distribution.

Professor Steven Schooner urged the Chinese to focus on competition, integrity and transparency in procurement.

Clearly, no system can achieve all possible goals, and some of the goals can conflict with others. Finding the right balance isn't easy.

As Professor Joshua Ira Schwartz pointed out, Americans keep tinkering with their system to further one goal or another and never seem to be satisfied for very long with the results.

News of American litigiousness has surely reached China. The delegation was interested in our dispute resolution process. Explaining it to foreigners was challenging. For instance, the delegation wanted to know how administrative judges at the boards of contract appeals could be truly independent when they were appointed by the head of the same agency whose disputes they would decide. We all knew that board judges are widely respected and generally considered impartial but had trouble saying why and how in a few words.

Maybe our system depends more than we realize on subtle traditions and tacit assumptions. We take these so much for granted, they almost defy expression. Having to explain our system to outsiders forces us back to the basics, so it's an educational process for us, too.

Joseph J. Petrillo is an attorney with the Washington law firm of Petrillo & Powell. E-mail him at jp@petrillopowell.com.

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