The Department of Defense opposes Al Franken’s appropriations amendment that would forbid the Pentagon from contracting with firms that force their employees to arbitrate if they are sexual assault victims.Â Not thatÂ DoD opposes the idea, you understand: it would just be too complicatedÂ because its subcontractors “may not be in a position to know about such things,” i.e., whether contractors employ the mandatory arbitration clauses.Â In a letter to members of Congress, the Pentagon claimed thatÂ “enforcement would be problematic,” because contractors may not be privy to what’s in their subcontractors’ contracts.
Government contracting is one of the most heavily regulated businesses around.Â Major Washington law firms have entire divisions devoted exclusively to understanding these rules — many of which change constantly based upon executive orders.Â The bidding rules themselves take up pages in the CFR.Â Meanwhile, these subcontractors are supposedly making some of the most complex technological systems around, with detailed specifications and plans.Â And somehow we’re supposed to expect that the poor contractors and subs won’t understand this quite simple provision (or check that the businesses they contract with do)?
Try again, fellahs.
To be sure, as Steve Kelman has brilliantly demonstrated, many of theÂ procurement rules are needlessly complex and inhibit performance.Â But this isn’t one of them.Â
To me, this sounds like some drone in DoD’s legislative affairs office, angling for the “not-the-sharpest-pencil-in-the-cup” award, wrote this thing after talking to a few people.Â Generally, agencies don’t like these riders, and this is part of their boilerplate.Â This seems likeÂ a screw-up, not a policy.Â At least I certainly hope so.