Apparently revolving doors can sometimes be locked?
A great parlor game to play in Beltway circles is to speculate which large government contractor a former federal official will work for when they leave public service. The "revolving door" is pretty common at all levels.[1]
There are a number of legitimate and illegitimate reasons (not legal or HR advice!) why a federal contractor might hire a former federal official, listed here in order of increasing shadiness:
- The former federal official is really talented and you have a business need for someone with that talent, independent of their public service.
- The former federal official has a deep understanding of how the government works and you have a business need for someone who has a deep understanding of how the government works.
- The former federal official has a bunch of friends within the government and you're hoping those friends will look favorably on you for hiring the former federal official.
- The former federal official did you a solid while they were a federal official and you're effectively rewarding them for doing that solid for you.
That third and fourth categories are—for obvious reasons—problematic. Fortunately, there are ethics and procurement rules, and even criminal statutes aimed at preventing post-government conflicts, generally lumped together in the category of "post-government employment" restrictions.
And even for the second category, although former federal officials can often work "behind the scenes" to help a government contractor, various criminal laws sometimes prevent them from "representing" the contractor with the government, from receiving compensation in some situations, and from sharing "non-public information gained during their government service".
Anyway, all of this is pretty normal and common and part of the system.[2] Disclosure: I, too, am a former federal official who did post-government consulting and then rejoined the federal government and then left again! I've gone through the revolving door twice, and am a strong believer in people working in the private sector choosing to work in public service and vice versa.
So anyway here's an interesting recent GAO decision:
CACI, Inc.-Federal, of Reston, Virginia, protests the Department of the Army’s decision to exclude CACI from competing ... for award of the sixth generation of an Army information technology (IT) hardware contract; the contract is generally referred to as the Common Hardware Systems (CHS) contract, or CHS-6. The Army’s decision was based on its determination that CACI’s use of a former government employee’s assistance in CACI’s pursuit of the CHS-6 contract created, “at a minimum, an appearance of an unfair competitive advantage.” CACI protests that the decision is “inherently unreasonable,” “not supported by evidence,” and “in violation of applicable law.” We deny the protest.
This is one of those opinions that's heavily fact-based[3], and largely turns on the conclusion of the contracting officer and on the traditional deference that GAO affords to reasonable agency decisions. Bottom line: CACI hired a former federal official, the Army's contracting officer concluded that the former federal official unfairly advantaged CACI, and CACI was barred from competing for the contract where it had the unfair advantage.
And, on one hand, it's a pretty straightforward case.
The predecessor CHS contract (referred to as CHS-5) was awarded to General Dynamics Mission Systems (GDMS) in August 2018 and includes prices that are effective through August 2023, when the contract is scheduled to expire. GDMS, or a predecessor company, has held the CHS contracts since 1995.
The former government employee who is relevant to this protest (referred to here as X) was the source selection advisory council (SSAC) chairperson for the CHS-5 procurement, and was one of the Army representatives involved in negotiating with GDMS prior to the award of the CHS-5 contract. As the SSAC chairperson, X concurred on, and signed a document titled “Memorandum for [X], Source Selection Advisory Council Chair” that summarized several matters addressed during the CHS-5 negotiations, including: GDMS’s identification of “cost drivers in the requirements that could be managed or mitigated to minimize cost impact to the customers”; GDMS’s initially proposed rates for certain items; and various negotiated modifications to the solicitation requirements.
Because it's fact-based, requires an agency determination, and involved some pretty damning facts here, I don't think this decision is really going to have much of an effect on the federal revolving door. Sorry, POGO et al.
It's also kind of surprising, though? Most of the information that CACI allegedly gained access to by hiring X on as a consultant was not really about the government's non-public information. Mostly, X had access to a competitor's non-public information:
[T]he agency states that, in making his final decision, the contracting officer also considered the extent to which X had access to other non-public competitively useful information, referring to X’s knowledge about: how GDMS orders spares for warranty sustainment; how GDMS supports expedited requests; GDMS’s solutions for repairing items; future government needs; the requirements that the current tracking system for technical insertions, task orders, and delivery orders was built to meet; and different levels of configuration management.
Could CACI have just obtained the same information if it had hired a former VP, capture manager, or program manager away from GDMS (or its sister organization, GDIT, which ultimately bid on CHS-6 contract)? Maybe? And the conflict risk to the government here is... what? That the Army might have multiple competitive bids?
Then again, the issue really is one of perceived conflicts of interest from government service and the concern that X had sensitive information about a relevant procurement that would unfairly jeopardize the current competition. Based on the facts at play, including some notable credibility determinations, the contracting officer called foul on CACI.
Fine. Good. I dunno, it's weird. Ultimately, though, you really gotta hand it to General Dynamics here. They've been the incumbent on this contract for almost 30 years. And yet, they managed to persuade the government that CACI had the unfair advantage because they hired on a consultant who participated in the award to GDMS back when it was the only offeror in 2018!
Can I get a slow clap? My friends: that is how you play the game.
[1] In 2021, according to POGO, companies in the defense and national security sector hired 46 former high-ranking Pentagon officials. And, in 2019, according to GAO, the "14 major defense contractors GAO reviewed hired about 1,700 recent former DOD senior civilian and military officials, such as a general or admiral, or former acquisition officials."
[2] It's not limited to the military-industrial complex. For example, the legal community in DC particularly enjoys the close-cousin parlor game of "which BigLaw firm will snap up which DOJ official?"
[3] Sorry lawyers, there are multiple counterexamples in the decision. Get ready to Bluebook those cf. and compare cites!