United States: Second Commandment Of Government Contractors: Thou Shalt Study Thy Adversary

(This article is part of a 10-part series for the blog of Public Contracting Institute called, "A Government Contractor's Ten Commandments.")

The movie "Patton" contains many memorable scenes, but one that will always stay etched in my memory is where the great German field marshal Erwin Rommel, the Desert Fox, begins his retreat after being beaten by Patton at El Alamein. As the German tanks turn and flee, Patton, played by the inimitable actor George C. Scott, screams, "Rommel, you magnificent ba$#ard, I read your book!" Very few of the things we do in the Government contracting world will involve the kinds of stakes that were associated with this famous World War II battle, but Patton's rant is evidence that knowledge of your adversary is a very valuable weapon.

A contract negotiation is not a battle between enemies fighting to the death. Instead, it is an opportunity for two entities with competing interests to negotiate an agreement that makes sense for both sides. While it is true that the two sides have different interests and positions, the point of most negotiations is to reach a deal that the parties can live with — and one that will require the cooperation of both parties from beginning to end if it is to be fruitful. Smart executives know that this contract, this negotiation, could lead to other contracts and other negotiations. So while it is perfectly acceptable to be firm and to stake out various positions, experienced negotiators know they should avoid a take-it-or-leave-it position even if that is the position from which they are dealing. They also know that the more they know about their opponent, the better they can prepare.

When I use the term "negotiation" in this article, it could include everything from the negotiation of a sole-source, multi-million-dollar contract to a meeting with a contracting officer to discuss a waiver or a change order. Regardless of the situation, your goal is to persuade your customer that something needs to be done, that the way things currently stand will not be satisfactory, or that something needs to change. Customers are not always receptive to such arguments, so your preparation process, which we discussed in the First Commandment, must include finding out about the person or persons you need to persuade. In street terms, this is known as "getting the book" on someone.

How can we do this?  First, if we do not already know the answers to these questions, we need to find out where this person fits within her organization. What is her job title? To whom does she report? Who will she have to persuade if she reaches an agreement with you? Before the Internet took over our lives, we would obtain this information by looking at an agency's organizational chart, which would provide a bird's eye view of the agency and was a wonderful starting point. We would then contact people within our own organization to find out if they knew the person and, if they did, what the person was like. If we knew someone outside our organization who might have dealt with them, we would contact them as well, pursuing the same line of questions.

This process takes time and effort, but it is well worth it. Many years ago one of our clients was having a miserable experience with a civilian agency. We tried to resolve the problem at as low a level as possible (more on this in the Third Commandment), but we got nowhere. We worked our way up the ladder, all to no avail, and finally decided we needed to meet with the Director of Contracts, a very experienced executive who had just joined the agency after many years at the Pentagon in senior contracting positions. I had never met this gentleman, but I had contacts who had worked with him for years. I spoke to several of them, and their views were unanimous: He was very smart and very tough, but he prided himself on having a reputation for fairness. In preparing for our 30-minute meeting, we focused on fairness, and we made sure to mention that special word frequently during our time with him. A few days after that meeting we had a favorable resolution. There has never been any doubt in my mind about the importance of this crucial step in preparing for that meeting.

This experience is a reminder of how valuable a tool a telephone can be. Of course with the advent of the Internet and the capabilities provided by e-mail and social media, these can be valuable resources as well. I have been stunned by what people will post online. While you will want to tap these resources when getting the book on an upcoming opponent, I would be cautious about using e-mail for this background research. Once an e-mail is sent, you have lost control of it. One of the recipients of an e-mail asking for information about your upcoming opponent might, perfectly innocently, forward it to a friend or a colleague who might forward it to your opponent without giving it a second thought.  Now you have a problem. While it is impossible to prevent all such leaks from occurring, using a phone rather than e-mail will reduce the possibility of it happening at all.

The information you need is out there. You need to figure out the best way to get it, and then you need to figure out how to use it. It is always possible that someone will act out of character or do something surprising, but this important step in the preparation process will generally prove to be very valuable.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions