Political transitions test how disciplined contractors really are about risk, compliance and decision‑making

Terry Gerton You’ve issued an article with some warnings to government contractors about preparing for this year’s midterm election environment. Let’s start at the top there. What are the big things that contractors should be concerned about?

David Robbins We have been so used to one-party control of government and the way of doing things that it can be a little jarring when party control changes. And in the midterms, you’ve got to prepare for what happens if at least the House or maybe even the Senate changes party hands. If past is prolog, there will be congressional investigations into government contractors, maybe less so about the government contractors themselves, but more about the federal programs upon which the contractors work. And that creates some risk for the community.

Terry Gerton Talk a little bit more about what kind of risks you see.

David Robbins The risks are generally reputational. The risks can also include to the customer relationship because these congressional investigations, to the extent party control changes, to the extent congressional investigations begin, can be focused on scoring political points as much as they can be focused on gathering facts. So your performance is one component of this, but also the program you’re supporting is another. And so you’ve got to protect both your company and your customer relationship and the good work you’ve been able to do. Those are the key risks.

Terry Gerton Your article actually describes some areas of particular risk for contractors who’ve maybe been working on some of the Trump administration’s top priorities. Can you give us some examples?

David Robbins I sure can. And this is not necessarily partisan or party-specific. Anytime it changes, priorities of any given administration can be at risk. But mass deportations, data gathering, privacy issues, any number of the more sensitive projects going on can become fodder for congressional hearings.

Terry Gerton One of the points that you make in your article is that contractors can’t just wait for clarity. They have to start preparing now. And so regardless of which policy direction ultimately takes hold, what are the steps that you recommend folks begin to take and think about?

David Robbins I think there are three general buckets. Now, we talk in the article about certain frameworks, certain pillars, but three general buckets. The first is monitor performance. Make sure you’re doing a good job, make sure you have records showing that you’re doing a job and you’re meeting the government’s requirements of you, because there’s only so much a company can control when they’re asked to do certain things by the government. Second is build relationships. It doesn’t really matter who’s in control if there are sensitive programs that a given contractor is working on that could be the subject of inquiries later. It never hurts to make friends now, to explain yourself now, to frame the issues, to tell your story now. And the third bucket really is to tighten up on internal documentation. A contract file is vitally important. How do you prove what you’ve done? How do you prove the limits of what you have done? And not to get overly legalistic, but there are certain defenses you can bring to bear on your behalf in the government contracts community if you are instructed cleanly and clearly to take certain tests by the government. That requires a clean documentary record to be able to prove these defenses exist. That may not be the silver bullet to PR risk of congressional hearing, but if you can trot out documents that say, here is our instruction, we had no choice, this is what we’re required to do by our customer, it can only help.

Terry Gerton So you’re really advising the compliance departments to get active.

David Robbins The compliance department is a good component of it. I think that point is a little broader than the one I was just making, which is just make sure the contract file is tight. The compliance role is make sure we’re acting with appropriate integrity and appropriate business honesty. Are there internal controls, reporting avenues? Are problems taken a look at, investigated, and taken seriously, even if they turn out to be nothing? That’s an important prophylactic step for any contractor, but having a robust compliance program can only help tell your story.

Terry Gerton I’m speaking with David Robbins. He’s a partner at Jenner and Block. Mr. Robbins, the article goes on to describe a strategic framework with five pillars. Walk us through at a fairly high level what those pillars are.

David Robbins And we talked about some of it a little bit earlier. The first pillar we call build the legal record now. That’s the documentary support of what you were asked to do, when and how. It’s better to tell your story with documents than to just do it by narrative. It’s harder to dispute a documentary record. The second one we touched on a little earlier, we call perform impeccably and document that too. Make sure you’re doing a good job. People may quibble with what you’re asked to do. But if you’re doing a good job and under budget or on time, that can only help you. Our third pillar, again, we talked about it a moment ago, is harden that ethics and compliance program. For all the reasons we just discussed, it helps you tell your story that you’re performing ethically, honestly, openly, and I personally believe it ensures to the benefit of a company overall, including to the bottom line. The fourth one, well, this gets a little more technical. This is consider your legal Defenses, consider your acquisition defenses. What can you bring to bear if people really start to push? That requires more involvement of lawyers, the office of general counsel, and capable, we like to say, outside counsel. The last one is to really think hard about your congressional engagement strategy. That includes lawyers, that may include lobbyists, that might include PR talent. It depends on how much you want to reach out. The key is to build relationships. Knowing the core committees of cognizance over your company and your business, whether that’s Homeland Security, whether that’s House Oversight, whether that’s anything else. Having those relationships in advance if you expect an inquiry at the staff level can only help you frame questions, tell your story, and prevent perhaps the most damaging PR risk.

Terry Gerton That sounds like very practical advice, but it also sounds to me as someone who’s not in the private sector, as a lot of overhead. Is this an issue that contractors of every size need to worry about? Or is it really just the big primes that need to prepare for this? How would you coach contractors of varying sizes to take on and think about that framework?

David Robbins I think we start by what programs are various companies working on. If they are politically sensitive, and you’re going to know what that is, right? If it’s in the news, if it’s the subject of protests, it’s worth the ounce of prevention. Now, I’m not saying everybody needs the platinum-plated program. That’s not our purpose here today. These are the pillars you’ve got to consider. Plussing up an internal record, looking at the ethics and compliance program, that can be done with existing resources. It just requires some focused attention. Where it can get expensive is if you have to hire on a congressional relations specialists, and that requires a close and careful look at potential risk.

Terry Gerton How do those guidelines filter down to the folks on the front lines in these organizations? It sounds like in a way we’re talking about the back office and the senior leader folks, but there are people on the ground dealing with their government counterparts every day. What do they need to be thinking about?

David Robbins I think it goes to, part of it is the proverbial Washington Post test, right? Is what you’re doing comfortable for you? Are you being asked to do something you’re uncomfortable about? That’s where the internal instruction to just speak up and ask questions and seek help comes into play. You can keep your customer happy. We all want to satisfy our customers in this arena, right, but you can keep you customer happy while having reach back support. It’s just uncomfortable to be the lone person making a decision of consequence without some help from your internal organization. That’s what I would tell the frontline people, if you get uncomfortable.

Terry Gerton There’s a fine line here between preparing for change and maybe over-correcting too early. Where do you most often see contractors misjudge that balance?

David Robbins Right now, this really is a matter of preparation and relationship building. So I would suggest contractors need to think hard about overt, early engagement. Staff relationships on committees, always helpful. Engagement with members, well, you wanna take a good, hard look and engage some help with some seasoned professionals to make that determination.

Terry Gerton And then if you step back, again, as we’re thinking about what could be a very tumultuous election cycle, what does resilience look like for contractors who are operating through these kinds of political transitions?

David Robbins Resilience looks like the ability to continue to perform the mission and adapt to changes as they come. It is capability amid modification, amid changes in scope and the ability to reach back to your contract’s professionals to modify what you’re doing in a legal and compliant manner.

Terry Gerton I’m sure that many of the big primes have lots of experience working through these kinds of transitions, but how is that resilience you just described different from reacting to the headlines?

David Robbins I think the difference is one of mindset, the difference is one of controlling the narrative and standing for something. We stand for compliant performance. We stand for serving our customer, but making sure we’re doing it within the framework we’re required in the contract versus waiting and lurching and over-correcting. It may sound like one of degree, but in my government days — I’m a former Air Force General Counsel’s office lawyer — I saw thousands of cases where things went wrong. And to me, it makes a tremendous difference.