Federal Contracting: Jobs and Representation
Federal contractors embody a somewhat hidden legal and law-related employment opportunity, both as potential employers and possible clients. Given two sides to each federal contracting transaction, don't overlook the U.S. government as an employer. Focusing on this very large universe can be immensely rewarding.
The U.S. government will spend $4 trillion over the next year. More than $850 billion will go toward purchasing goods, services, and research and development (R&D). The nonpartisan Congressional Budget Office reports that spending on contracting during the twenty-first century has grown more quickly than inflation and also as a percentage of total federal spending.
No one-not even the CBO-can tell you exactly how many federal contactors there are. A number of experts who monitor this kind of data say that there are now more federal contract workers than government employees (there are approximately 3 million of the latter).
Public Sector Job Opportunities
Internally, U.S. government contracting and procurement officers handle these purchases, and number 35,000 people (almost equal to the number of attorneys who work for the government in "mainstream" legal positions). It is estimated that between 7,000 and 8,000 of these contract and procurement officers have a law degree.
Law-Related Job Titles
"JD-preferred" contract jobs in the U.S. government, for which a law degree is advantageous but not required, expand opportunities beyond the most common attorney job titles, i.e., "Attorney" and "Attorney-Advisor." They include:
Contract Staff Analyst
Contract Termination Specialist
Federal Contract Compliance EEO Specialist
Grants Administration Specialist
Technology Transfer Officer
Every one of the hundreds of U.S. government departments and agencies employs contract and procurement personnel in addition to attorneys in its legal offices that focus on federal contracting practice. Moreover, contract and procurement offices have a long history of hiring entry-level individuals.
Private Sector Job Opportunities
Federal contracting practice is a massive private sector enterprise. Very few of the estimated 275,000 prime contractors who sell to the U.S. government do so without legal advice and counsel from either internal or external attorneys. The employer universe expands significantly when you add thousands of subcontractors to the equation.
In addition, many of these companies and nonprofits such as universities and hospitals employ people for law-related contracting and procurement positions with job titles comparable to those listed above, plus additional ones, such as:
Contract and Rights Manager
Fiduciary Procurement Specialist
Industrial Property Manager
Private practice related to government contracting may consist of:
positioning clients to compete for government contracts;
negotiating and documenting contracts, including advising and assisting with drafting proposals and bids in response to Requests for Proposals (RFPs), Invitations for Bids (IFBs), and Sources Sought Solicitations;
strategizing and litigating contract disputes; and
defending against contract fraud allegations.
Typical corporate procurement department law-related duties include:
sourcing spending categories
industry analyses to identify size of industry, leading players, and specific industry characteristics
developing contracts with new suppliers or renegotiating existing contracts
managing the contract negotiation process by: defining the strategy; leading the sourcing process for new and expiring contracts; and identifying opportunities for expanded supplier relationships
identifying metrics to evaluate supplier performance and achieve best value
developing close relationships with suppliers and appropriate client groups
analyzing, interpreting, and overseeing company procurement policies and actions and adherence to company policies and procedures, procurement terms and conditions, government and company directives, and law and regulations
conducting internal audits to identify problems and trends and recommend improvements while guiding corrective actions
Public Sector Practice
U.S. government contracts practice encompasses:
contract negotiation, administration, and termination
drafting RFPs, IFBs, Sources Sought Solicitations, and other contract documents
investigating and litigating contract dispute allegations
investigating and prosecuting contract fraud allegations
The federal contracting regulatory structure is unique in that it involves all three branches of the U.S. government. This makes for a complex practice. As attorneys, we know that complexity equals demand for lawyers who can help their internal and external clients sort through the labyrinth of regulations devised by multiple agencies and other organizations.
The starting point for most matters that arise within federal contracting is the Federal Acquisition Regulation (FAR), a massive (1,897 pages) compendium that is the government's contracting "bible." The FAR is a joint issuance by the Department of Defense (DoD), General Services Administration (GSA), and the National Aeronautics and Space Administration (NASA) for use by executive branch agencies in acquiring goods and services.
But that is only the beginning. Each department and agency can (and most do) issue its own FAR supplement. Some of the larger agencies have taken this to an extreme. For example, the Defense FAR Supplement is approximately 1,000 pages, not including accompanying guidance documents.
Once you have navigated your way through these basic contract regulations, you must also factor in pronouncements from the following:
The four government Boards of Contract Appeals:
Armed Services Board of Contract Appeals, which is generally responsible for deciding appeals from decisions of contracting officers in the DoD, the three military service departments, NASA, and, when specified, the Central Intelligence Agency
Civilian Board of Contract Appeals, an independent tribunal within the GSA that hears and decides disputes involving most other federal executive branch agencies and government contractors under the Contract Disputes Act, 41 U.S.C. Chapt. 71
Government Accountability Office Contract Appeals Board, which considers appeals of decisions by contracting officers in legislative branch agencies only, including the Architect of the Capitol, the Congressional Budget Office, and the Government Publishing Office, among others
Two other federal organizations have a great deal of regulatory policy and direct action influence over federal contracting:
The U.S. Department of Labor's Office of Federal Contract Compliance Programs, which enforces the contractual promise of affirmative action and equal employment opportunity required of those who do business with the federal government.
The President, who issues executive orders that can have a major regulatory compliance and enforcement impact on the federal contracting process. For example, in September 2015, President Obama signed Executive Order 13706, establishing paid sick leave requirements for federal contractors. The order went into considerable detail, specifying the number of hours of paid sick leave that employees of contractors and subcontractors must earn for every 30 hours of work, and much more. That is only one of a number of executive orders that attorneys and contracting officers must understand and apply.
You do not need to pay the huge tuition fees and invest the time necessary to obtain an LLM in order to be competitive for a contracting attorney or law-related position. There are high-quality certificate and comparable programs that, in the eyes of employers, ably supplement your law degree. Such programs include the U.S. Small Business Administration’s online program, Government Contracting 101, and the National Contract Management Association’s Certified Federal Contracts Manager program (also online). A benefit of federal contracts and regulation practice is that this is a field that is not likely to go away anytime soon, so your knowledge will tend to be of lasting value and, given the large number of players, highly transferrable.