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There Are Two Approaches. Take Both.
To: The Director of the West Dakota Division of Motor Vehicles
To obtain authorization to employ a single design-build procurement contract for your division’s new computer network, you have available two generic approaches: the legal approach and the policy (or political) approach. In reality, of course, you will need to employ a strategy with both legal and policy components.
So why has no one created a rule prohibiting a design-build procurement? Probably because (to date) no one has raised this possibility, though I can bet that, somewhere, someone is now drafting such a regulation. So you need to act quickly — not just because you need your new computer network but because you need to win authorization for design-build before someone sneaks a new regulation into place.
How do you obtain the necessary authorization? Obviously, your legal counsel does not carry much weight either with Gord Tommon, your own procurement chief, or with Connell McGaret, West Dakota’s chief procurement officer. You need more legal firepower.
So, why not get an official ruling from the attorney general? Do you — or your legal counsel — know someone in the AG’s office, particularly someone who has worked on contracting questions? If so, try to get them to send you some official-looking piece of paper stating that a design-build contract is certainly permissible under chapter 37(b)64 or whatever.
This won’t make the procurement folks happy. And it won’t convince them either. But it will, at least, neutralize their legal claims. If design-build is perfectly permissible under West Dakota’s laws and regulations, then the procurement people will be forced to argue that, although it may be legal, it is still dangerous.
By getting the AG to make an official ruling, you can shift the debate from one over legality to one over policy. And in the policy debate, you ought to have a significant advantage.
Who in the governor’s office is most likely to see the lines at motor vehicle offices as a political liability? It’s the political and policy people — the key staffers who worry about the governor’s political reputation as the state’s leader (and, perhaps, who have a role in crafting policies to enhance that reputation). Make your case to them. In particular, give them two numbers: the date that your new computer network would come on line with a traditional contract, and the date that it would be on line with design-build.
First, use the AG’s ruling to alleviate their legal concerns. Then, use the service-delivery impact to win their policy (and political) support.
Then take the same message to the legislators who are key on these issues. This may include the state representative who chairs your appropriations subcommittee. This may include the senator who chairs the government operations committee. This may include someone who has crusaded against fraud, waste and abuse in contracting. It may include someone who is frustrated with the slow pace of government modernization. First, convince your natural allies. Then, ask them to help you neutralize the opposition of any legislator who might object to the design-build concept.
You don’t need the legislature to pass a law or resolution supporting your design-build approach. You simply need to be sure that it can’t somehow prevent you from using design-build or punish you for doing so. Once, you have enough political support, you can do it.
You need to monitor this contract carefully. You need to create a monitoring team of both IT people and program people. You need to create a monitoring team of people who know what the big problems are likely to be and who know how to find them. You need to create a monitoring team of people who report directly to you. You need to create a monitoring team of people who are able and willing to bring you bad news early.
No matter what kind of procurement process you use to obtain a big information-technology contract, you need to monitor it carefully. Otherwise, the Zenith City Tribune won’t have to bother covering the long lines. Instead, they can assign several reporters full-time to cover just you.
Agree or disagree? If you think you have a better way to deal with this month's Manager's Choice dilemma, or would like to expand on Bob Behn's approach, share your thoughts with other readers here. Send your solution to mailbox@governing.com. Please include your name, location, government or business title or job description, and a daytime phone number (for verification purposes).
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The research done by your legal counsel clearly suggests that West Dakota has no law (or even formal regulation) explicitly prohibiting you from employing the design-build concept. Not surprisingly, however, this does not persuade your agency’s (or the state’s) procurement people. Their incentives are quite clear: If they approve something that others charge later is wrong or even questionable, they get into trouble. If they approve something about which no one ever raises any questions, they receive no praise or even notice. Naturally, they become risk-averse: The procurement guardians, at both the state and agency level, establish additional rules to be doubly sure that nothing goes wrong. Then, after a few years, everyone — procurement folks and line managers — simply accepts that these rules were somehow mandated by the state constitution.