Public contract writing systems: A house divided
| DOI | https://doi.org/10.1108/JOPP-12-03-2012-B001 |
| Date | 01 March 2012 |
| Published date | 01 March 2012 |
| Pages | 295-322 |
| Author | Robert E. Lloyd |
| Subject Matter | Public policy & environmental management,Politics,Public adminstration & management,Government,Economics,Public Finance/economics,Texation/public revenue |
JOURNAL OF PUBLIC PROCUREMENT, VOLUME 12, ISSUE 3, 295-322 FALL 2012
PUBLIC CONTRACT WRITING SYSTEMS: A HOUSE DIVIDED
Robert E. Lloyd*
ABSTRACT. This paper examines automated contract writing systems, a vital
aspect of public procurement which has replaced the more manual methods
of drafting of contracts used in the past. Using the system of the U.S. federal
government as an illustration, the various components of a contract writing
system are detailed and discussed, distinguishing contract writing from e-
procurement and demonstrating how a bifurcated approach has been
adopted for contracting automation. The larger implications of this dual
nature are analyzed along with misconceptions about contract writing
systems and the contrast between the perspectives of procurement versus
finance. Future research devoted more to cross-disciplinary issues and
human factors affecting contract writing, rather than just systems
development issues, may offer an opportunity to improve the effectiveness
of public procurement automation.
INTRODUCTION
The literature of public procurement rarely addresses contract
writing systems except in passing. No established definition of
contract writing system exists in U.S. federal law or regulation, despite
its importance and the critical need in contracting, of all fields, to
have clear written definitions (Edwards, 2011). The term “contract
writing system” is only mentioned once in the voluminous Federal
Acquisition Regulation or FAR (2012, at paragraph 4.604(b)), without
definition. In public administration research, the term is scarcely
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* Robert E. Lloyd, MPA, is a Certified Professional Contracts Manager and
Fellow, National Contract Management Association. His research interests
include both theoretical and operational issues in public procurement. The
views expressed in this article are those of the author, and do not
necessarily reflect those of the U.S. Department of State or the U.S.
government.
Copyright © 2012 by PrAcademics Press
296 LLOYD
found; instead, terms such as “e-procurement” are found, which is
defined generally as the use of automation to aid the procurement
function (see Dooley & Purchase, 2009). International studies (such
as Forster, 2008; Vaidya, Callender & Sajeev, 2009) tend to provide
only brief overviews of e-procurement or discuss it primarily as a
buying method for interfacing with industry, without detail as to how
contracts are actually prepared. A more recent, related development
is the advent of the concept of “wide area workflow” or WAWF,
defined as a secure web-based system for online invoicing, receipt,
acceptance, property transfers, and payment, which is a different and
more expansive type of system than contract writing (U.S. Department
of Defense, 2011a, 2009a; U.S. Department of Defense, Business
Transformation Agency, 2009; U.S. Department of Defense, Office of
the Inspector General, 2001).
The subject of this paper is the computer-based system used by
each U.S. federal agency to create solicitation, contract, and
modification documents, referred to here as a “contract writing
system”. As is typical of the U.S. government, there is no monolithic
approach to these systems; instead, each agency has selected or
developed its own system, although some share the same
commercially sold, “off the shelf” automation product. The guiding
principle has traditionally been to use commercially available
software (U.S. Department of Defense, 2011b), even though the
process used and clauses included in U.S. government contracting
are not the same as those used in the commercial marketplace.
Before discussing present-day contract writing systems, it is
worthwhile to pause and reflect on a time before they existed at all.
CONTRACT WRITING: THE OLD DAYS
While the following brief description of key activities in the U.S.
government’s contracting process may at first glance seem to hark
back to the nineteenth century, it is how contracting was practiced
circa 1980, based on the author’s direct experience (and parallel to
that reported by Webb [1985]):
- Procurement requests were drafted by hand and then typed by
available clerical staff on a typewriter (electric or manual) on a
form containing multiple carbon copies. (Most contracting offices
had, at best, a few typewriters, not one for every employee, but
just enough for the clerical staff.)
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