Memorial Day 2009

May 25, 2009 on 3:06 pm | In Tributes | Comments Off

As custodians of our defense contracts, we, the procurement professionals, have a special obligation and duty to our fighting men and women. We supply the troops; we bring them the latest and best technology in the world; and we make sure that they have the best America can provide. Fail in our duty, and people can and will die. This is a sobering thought, but the weight of our responsibility should be ever present on our minds.

Today is a day of reflection toward those who have given the ultimate sacrifice so that we can enjoy the greatest and freest society the world has ever known. It is not, as our dear President mistakenly observed, the day to honor those who serve – they have Veterans Day. Today is the day to honor the fallen. And to thank the families of those who have died – they too have paid a terrible price for our freedom.

Our liberally slanted society today reflects the youth of the ‘60s. Make love, not war. As Peggy Noonan has observed, “It’s good to remember war is hell. But when we removed the warrior, we removed something intensely human, something ancestral and stirring, something celebrated naturally throughout the long history of man. Also it was ungrateful: They put themselves in harm’s way for us.”

I find it interesting and sobering that so little respect is afforded to our flag these days. Kids have stopped saying the pledge every day in school. When prayer was removed, the religion of humanism was allowed to pervade their consciousness. It is now the National religion. Look at this picture.


Who honors the flag? The man who willingly risked his life to defend it. So many others just don’t seem to care, or sadly, know. Common courtesy has faded; is it any wonder that respect for our country and those who fought to save it has also gone by the wayside?

No one likes war, at least no one who is sane. It is a natural result of the human condition where good must fight evil to prevent it from dominating us. People are born to be free. It is an inalienable right. It comes from the creator – words that our founding fathers immortalized. You don’t have to believe in God to know that there is a split between good and evil. Demonizing? You betcha! And all it will take for evil to succeed is for good men and women to do nothing.
One of our greatest patriots of the modern era had this to say in recognition of this day. “I have no illusions about what little I can add now to the silent testimony of those who gave their lives willingly for their country. Words are even more feeble on this Memorial Day, for the sight before us is that of a strong and good nation that stands in silence and remembers those who were loved and who, in return, loved their countrymen enough to die for them. Yet, we must try to honor them — not for their sakes alone, but for our own. And if words cannot repay the debt we owe these men, surely with our actions we must strive to keep faith with them and with the vision that led them to battle and to final sacrifice. Our first obligation to them and ourselves is plain enough: The United States and the freedom for which it stands, the freedom for which they died, must endure and prosper.” Yes, those are the words of President Ronald Reagan.
Patriots today come in all shapes and sizes. And the fact that we can still debate the rightness or wrongness of battles between good and evil. I particularly like the words of the hunter, musician, and patriot, Ted Nugent who said, “In paying the ultimate sacrifice, American warriors ensured that not only would America continue to be free but that America would continue to be a beacon of freedom so intense that it no threat of oppression can extinguish it. So long as Old Glory flutters in the wind, there is hope. So long as American warriors are willing to carry Old Glory into battle, freedom’s flame will never be extinguished. Our enemies can knock sometimes down our buildings, but mortar, brick and steel does not America make. It is the irrepressible spirit and undying love of freedom that is uniquely America and it is the American warrior who is willing to fight and die to protect the God-given freedoms and rights of all people.”
We are not brick and mortar. We are free human souls. Our souls are from above. Our freedom is from our forefathers and the many who have died to preserve it for us. It was bought at great price. Respect that. Work to continue the effort they started. And never, never, never, give up.

Contracts and Bridges

May 22, 2009 on 1:26 pm | In Contract Drafting, Leadership | Comments Off

There are many things we attempt that literally have no value until they are completed. At the same time, there are some things that just getting them done “well enough” can be acceptable.

For example, if you are writing a position paper and you have thought out your arguments, gathered your facts, and written all of this is a logical manner, there is a good probability that what you have done is good enough for the purpose and you can submit it. If you are like me, however, you constantly believe that you can make it just a little bit better so you sleep on it “just one more night” and maybe you get back to it and maybe you don’t. In these cases, you need to discipline yourself to accept “good enough” and move on. The same can be said of a contract. Anyone who has attended my classes has heard me say that there is not such thing as the “perfect contract” (no matter what your boss or even Legal might try to tell you). No matter how many sets of eyes get to see it, there is always something that can be done to improve it in some way. It’s the nature of business transactions and the foibles of our human language. Good enough needs to be good enough, and you need to get on with other matters.

But there are some things where good enough isn’t. Suppose you were building a bridge. You might have the anchor supports, the girders, the suspension cables, and the mid-span supports (I’m no engineer, so there are probably correct names for all of this, but I think you get what I am saying), but unless you have laid the very last section of decking, you do not have a bridge. It is not functional. It cannot be used as a “bridge.” It might be a nice piece of art, and it might even be considered a “good start,” but if someone is trying to take a truck loaded with widgets across it, they won’t make it. And the results can be disastrous if not catastrophic.

In everything you do in the course of a day, which of them can be completed “good enough” and which ones must be fully carried across the finish line? Are you writing a contract or building a bridge? Each task you tackle in the course of your day fits within one, and only one, of these two categories. Do you ever confuse them?

I recently accepted the task of writing an agreement for a client. It’s a pretty standard agreement with mostly boilerplate language. It was relatively easy to locate a model, review it for applicability, accuracy, and currency and have it prepared. It was, as far as this type of agreement goes, “good enough.” The problem arose in that this client as not completed the formation of their business. They do not have an approved company name registered with the state. So while the agreement is “good enough” we cannot carry it across the finish line. There is an absolutely essential part that is missing – the name of the party.

So the next time you create your “to do” list, give some thought about into which of these two categories each task fits. Can you get it completed “good enough” and not waste any more time trying to make something perfect that never will be? Or is this a task that has a critical component that must be completed? What is that critical component? Have you set the wheels in motion to make that happen? Do you even know what that component looks like, who has to do it, and what resources will be necessary to get it done? We worked with a client who was frustrated over not having a website. They had drafted all the content, but could not figure out how websites are set up (let’s just say that IT and web searches were beyond their experience). We showed them how to register a domain name, how to set up a hosting agreement, and how to load webpages into the site. Any ONE of those things being missing would have prevented the site from being viewed by potential customers. We needed all three. And it made no sense to embark on building a website until all three were identified and someone was made responsible for making it happen. The content could be considered a good-enough task. The whole website was a bridge task.

How many projects do you have that have lain incomplete for what seems forever? Are they contracts or bridges? Can you make use of it in its current good-enough state? Or must you find that missing link to connect both ends of the bridge?

When you think about getting things done, considering this approach might be a useful tool in increasing your productivity.

Active Listening – Part 2

May 13, 2009 on 11:39 pm | In Negotiations | Comments Off

In our last post we talked about some of the techniques you can use to develop better skills at active listening. In this post we will talk about some additional active listening skills and also about some tools for persuasion.

When the situation calls for it, and negotiations usually do, a question often comes up over whether you can take notes while engaged in active listening. Certainly you have to drop the eye contact to look at a piece of paper, but the simple answer is yes – it is appropriate to take notes. LIMITED notes. Why limited? While eye contact encourages a focus on what is being said, most people will remember better things that they write down. By making limited notes you can focus on those most important things and commit them to memory. Further, some note taking suggests to the speaker that you consider something they said so important that it is worth making a “permanent” record of it. And there is something interesting about the written word. When we see something in writing, we naturally believe that it is more accurate [you know like they say, “I found it on the web so it must be true!”] Obviously that is NOT true, but we laugh because it is “almost” true. We are more likely to believe something that is written down, and if you are writing what the speaker is saying, you are encouraging them with the subliminal message that you believe what they are saying. So yes, it’s OK to take notes during active listening, but keep it limited and only the high points. Keep it short so that you can re-engage the eye contact.

When you are speaking there are a few techniques that will encourage active listening by your audience. Certainly the use of eye contact and positive body language just as when you are listening, but now you also have the tool of your voice. Speak softly, but loud enough to be heard. Temper your words. Do not be aggressive with your language or your attitude, just as you should not appear condescending. If your listener perceives that you are speaking down to them, they will stop listening and begin plotting their revenge. You can’t control their perceptions completely, but you can work toward not antagonizing them! And I can’t emphasize this enough – there is NEVER a place for vulgarity or profanity. Remove those words from your language in all situations.

When making an argument, break it down into bite-sized pieces. Don’t lay everything out at once. Make it follow a logical progression. Ideally you want them to reach your conclusion before you get to it. In that way they perceive it as their own idea. This is good. Don’t make the waters murky either; concentrate on the key points and ignore the inconsequential ones. In the same vein, stay focused and try to keep the conversation on point.

Another strong suggestion for being persuasive is to make sure that you advocate for a particular position rather than simply being against theirs. If you just disagree, you will be perceived as just disagreeable. This does not enhance the relationship and remember that all negotiations involve three aspects – the subject matter, the process, and the relationship. Have a particular result in mind, but there is no need to be dogmatic about it. Keep in mind that you are on a quest for the ultimate interests. Positions are where you end up after you understand the interests.

Another excellent suggestion is to eliminate the word “but” from your lexicon. Why? Because whenever there is a “but” in a sentence it is a big red flag that says “everything that came before this is about to be negated.” It is an indirect (and passive/aggressive) way to say, “You are all wrong!” People don’t like that. So what if instead of using “but” you convert every one into an “and?” This validates what they have said and adds to it. Try this in your everyday conversation. You will see a very different reaction from those around you.

And the last suggestion today is this: Don’t worry about who gets credit for an idea that closes the deal. The goal is to close the deal. If your ego is that large, you probably aren’t an active listener (or a very good negotiator) anyway!

What is Active Listening?

May 12, 2009 on 4:18 pm | In Negotiations | 1 Comment

When you are negotiating, selling, or in any situation where you need to build a relationship, there is one very simple skill you should master to make these encounters more powerful and rewarding. It is the skill of active listening.

What exactly is that? There is an old adage that God gave us one mouth and two ears for a reason – we should listen twice as much as we talk. Stephen Covey tells us that a key habit of successful people is to seek first to understand – then to be understood. We all want to be understood – or at least heard. The problem is that most of us have developed some very bad habits that send constant signals to people that we are NOT listening! So one goal of active listening is to shut down those signals.

The first of these is to establish solid eye contact. This is not a staring contest to see who can go without blinking for the longest time. Eye contact tells the person that you are focused on them; that you are listening to their every word. It should be natural and you should try very hard to not pay attention to the TV behind them, or the dog running down the street, or the cop writing a ticket on – wait a minute is that your car? OK, there are legitimate distractions, but absent that, stay focused on the speaker.

You can also use positive body language. Stand straight. Nod in understanding. This does not indicate agreement; only that you are listening. Where you place your hands can also invite the speaker to provide more detail or explanation. Putting your hands on your hips (called “akimbo”) suggests that you are impatient and this will quiet them more quickly. Fiddling with change in your pocket or jingling keys can have that same effect. Try to keep your hands still. Don’t sway, dance, or shuffle your feet. Be relaxed. And listen.

We can all listen far more quickly than even the most rapid speaker can talk. What we usually do with this surplus brain power is to formulate what we are going to say next. While some thinking allows us to comprehend what is being said, resist the temptation to formulate your entire next monologue after hearing the first ten words of the person speaking. In the same vein, don’t interrupt. Even if justified, it makes people angry and they respond accordingly. Let people drone on if they must. It makes them feel as if they are being heard. This sometimes takes some patience, but it is part of active listening and a trait that you should work to develop.

You should also practice a few natural phrases that encourage people to tell their whole story. Such phrases as, “and then what happened?’ or “and how did that make you feel?” or “Please tell me more” all serve to get more detail from the speaker. Not everyone is a good storyteller, so they might need some coaching to get the story laid out in a complete fashion. To improve your skill in this area practice telling jokes or short stories. Very few people do this well, but it can be learned. One positive suggestion is to read Mark Twain – the consummate storyteller.

The last suggestion for now (there is more, but we will cover that next time!) is to practice repetition and rephrasing. State to the person what you heard. Put it in your own words if you must, but this gives them a level of confidence that you understood things they way they intended to convey them. This repetition also locks it into your mind so that you can recall it later.

Practicing active listening is harder for some than it is for others, but in negotiations it is a critical skill that is worth the practice.

The Christian Doctrine in Government Contracting

May 8, 2009 on 10:36 pm | In Contract Interpretation | 4 Comments

The following article appeared in this month’s issue of FAR View – a newsletter put out by the Government Contracting students of Cal Poly Pomona’s Society of Law, Contracts and Procurement. If you are not already subscribed to this wonderful publication, simply send an email to and just ask! And if you want to check out the current issue, just ask them or ask me – I’ll send it to you. Just go to and post the request.

There is a principle of government contract law referred to as the Christian Doctrine. When I teach this in a class I typically joke that it is the principle that states that defaulting contractors will be fed to the lions. But in reality it has nothing to do with lions, or Christians, or eating. It is the principle that tells us when a clause, having been omitted from the contract, might be “read into” the contract by operation of law – often to the great surprise of the contractor.

The doctrine gets its name from the seminal case in the area captioned G.L. Christian & Associates v. US, 312 F.2d 418 (Ct. Cl. 1963); rehearing denied, 320 F. 2d 345 (Ct. Cl. 1963); cert denied, 375 U.S. 954 (1964). The contract in question was awarded by the New Orleans Corps of Engineers for construction work in the area. There is a hint that the Termination for Convenience clause was actively negotiated out of the contract by the contractor. When a new contracting officer arrived, however, and it was determined that the services were no longer needed, a termination for convenience issued. Mr. Christian argued that without the clause, a termination was such an extraordinary act that the government had no right to terminate and as a result he would be entitled to recover full commercial damages for breach of the contract. These damages would include all consequential and incidental damages, including his lost profits measured by what he would have made if the contract had been allowed to run its course. These are called “anticipatory profits” and every government contracting student knows that these are damages the government never pays.

The Court of Claims (now the US Court of Federal Claims) reasoned that there were some clauses that were required to be in contracts that reflected such an ingrained principle of federal contracting law that their omission could not be tolerated. As a matter of public policy, therefore, if the clause was omitted, it could only have been by accident and it must be read into the contract. As a result Mr. Christian’s contract was deemed terminated for convenience and his damages were limited to the termination for convenience clause limitations, once they were “read into” his contract.

On the one hand this may seem very unfair to Mr. Christian. Looking at it from the view of the “public” however, the termination clause itself is so unique to government contracting simply because it does reflect a very important policy. If the government no longer needs whatever the contract is for, the taxpayer should not be required to continue paying for something it does not need. In commerce generally this is considered a breach, but for the government different policies apply. So the Christian Doctrine has been developed to provide the following guidance: IF (and only if) there exists a required clause that reflects an important public policy, its omission will be corrected by reading the clause into the contract. So there are two essential elements for invoking this doctrine. First the clause in question must be required by the regulation or statute. Second, it must reflect an important public policy. If it meets those standards, then the Christian Doctrine will apply and the clause will be considered part of the contract, whether or not it appears by reference or full text in the contract.

Clearly not all clauses fit into those requirements. One clause that does not is the “Availability of Funds” clause. Can you figure out why? We’ll talk about that clause next time.

Do You Pray for Your Contracts?

May 7, 2009 on 9:33 pm | In The Profession | Comments Off

Have you ever heard someone say, about a coworker who was taking on a significantly challenging task, that “He doesn’t have a prayer?” The obvious meaning is that even calling on your deity will not assist you in achieving your objective. Have you ever read a contract and had that same feeling? Would you normally pray for your contracts? And why would I ask such a ludicrous question?

Before you think me gone mad, or that I am one of those “loony Christians” (which by the way I am – Christian, that is. The jury is still out on the loony part,) let me assure you that my questions are quite reasonable – especially today. Today is the National Day of Prayer.

If you look at the history for the National Day of Prayer you find that it dates WAY back to the earliest days of our country’s founding.
1775 The First Continental Congress called for a National Day of Prayer.
1863 Abraham Lincoln called for such a day.
1952 Congress established NDP as an annual event by a joint resolution, signed into law by President Truman.
1988 The law was amended and signed by President Reagan, to be the first Thursday in May.

In honor of this day in 1982, Ronald Reagan sad, “Today, prayer is still a powerful force in America, and our faith in God is a mighty source of strength. Our Pledge of Allegiance states that we are ‘one nation under God,’ and our currency bears the motto, ‘In God We Trust.’ The morality and values such faith implies are deeply embedded in our national character. Our country embraces those principles by design, and we abandon them at our peril. Yet in recent years, well-meaning Americans in the name of freedom have taken freedom away. For the sake of religious tolerance, they’ve forbidden religious practice in the classrooms. The law of this land has effectively removed prayer from our classrooms. How can we hope to retain our freedom through the generations if we fail to teach our young that our liberty springs from an abiding faith in our Creator?”

Powerful words. This blog is too short to go through the presentation I often make in classes about whether or not America is a “Christian Country,” but suffice to say that Christian themes have predominated in our collective view of the underlying principles on which our country was founded. And even the use of “Christian” is being co-opted, much like other words that we learned in grade school, but today have completely different meanings. One of the preferred monikers now is “Follower of Jesus.” Seems people have abused the true meaning of Christian to the point that it is no longer a badge of honor and statement of the moral values you try to practice. Too much has been done in the name of Christianity for it to maintain its proper place of reverence in our vocabulary. And prayer is not unique to the Christian faith.

Regardless of your religious leanings (or lack thereof) most Americans believe in the power of prayer. And if you have a contract that seems hopeless, think about praying about it. It just might help.

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