By Steve Thorpe
sthorpe@legalnews.com
Once the “Arsenal of Democracy,” Detroit’s defense-related production has diminished over the years. George W. Ash is a partner at Foley & Lardner LLP and a member of the Automotive Industry Team as well as the Privacy, Security & Information Management Practice. He is the chair of the firm’s Government Procurement Practice, which was recognized by Chambers USA (2011, 2012 and 2013) as one of the top practices in the nation. A retired United States Air Force (USAF) lieutenant colonel, Ash spent 20 years of active duty as a judge advocate and an associate professor of law at the USAF Academy. He also served as an advisor to the strategic arms reductions talks in Geneva with the former USSR.
Most people think defense procurement means weapon systems, and while it includes such items, it also includes sedans, office supplies, clothing, fuel, energy, construction, janitorial services — and the list goes on. The government buys virtually everything! They are the largest purchaser of goods and services in the world, and Department of Defense (DoD) makes more purchases than any other federal agency.
Ash: Actually, my first assignment as a newly minted Judge Advocate in 1976 was to Wurtsmith Air Force Base, a Strategic Air Command base near Oscoda, Michigan. In 1995, much to everyone’s surprise, Selfridge was placed on the proposed base closure list. Technically, it was the Army Garrison at Selfridge that was closing, but it was that Army unit which largely paid for Selfridge base support, with its on-base housing used by TACOM military personnel. The Army claimed by closing the Army Garrison they could save $10 million per year with no adverse impact. I was hired by the Selfridge Air National Guard Base Community Council. In working with the community, I was successful in showing the Army proposal shifted costs from one service to another, providing no real cost savings, and that their model included a number of false assumptions. Also, there was little assessment of Selfridge’s military value, which was the key factor in a Defense Base Closure and Realignment (BRAC) decision. Because of our input, the BRAC commission voted to remove Selfridge from the closure list. After that, the Michigan delegation, led by Candice Miller, Carl Levin and Deborah Stabenow, collaborated to further raise the military value of Selfridge and also enhance its importance as a homeland security asset. The next BRAC was in 2005, and I was hired by Macomb County to assist in keeping both Selfridge and TACOM off the closure list. Working with the community once again, we were so successful that TACOM actually increased in size as a result.
Ash: TACOM, which is located in Warren, is an Army installation formally known as the U.S. Army TACOM Life Cycle Management Command. While most think of it as a “buying center” for tanks and heavy equipment, it is actually more than that - its mission includes research, development and sustainment efforts to provide the nation’s warfighter with the best possible material and equipment — virtually everything used by today’s soldier. It also includes the U.S. Army Tank Automotive Research, Development and Engineering Center (TARDEC) with over two dozen special laboratories specializing in testing and research related to ground transportation systems — ideally located in the automotive capital of the world.
Most of my current involvement with TACOM focuses on representing clients that are doing business with TACOM, from obtaining a contract, performing a contract or post-performance questions or disputes.
Thorpe: Some say that the increasing complexity of procurement procedures is discouraging businesses from doing defense work. Agree?
Ash: Not necessarily. Certainly there are government-unique requirements and for sophisticated government-unique products (e.g., a combat vehicle or major weapon system), there will be complex requirements. However, the government buys a wide variety of products, many of them meeting the Federal Acquisition Regulation definition of a commercial item that when applied properly, results in a “near commercial” contract or subcontract, even though the government is the ultimate customer. What contractors can find discouraging is a cumbersome process that uses forms and acronyms that seem strange, and contracts that include socio-economic and compliance requirements over and above performing the contract’s objectives. Successful contractors invest in the infrastructure to meet the government’s requirements (policies, procedures, training, etc.), while passing these costs onto the government, and have a strategy to pursue government work without letting it interfere with or affect the pricing or performance of their non-government work.
Thorpe: How does your practice involve the defense industry? What does the future hold?
Ash: I represent a wide variety of DoD contractors, from very large Top 100 corporate contractors to small, service disabled veteran owned businesses. My clients provide a wide range of goods and services such as performing sophisticated research on cutting edge weapons and technology, providing military recruitment advertising, manufacturing weapon systems, building construction and performing as subcontractors providing a wide variety of goods and services at various tiers of performance. Many of my clients sell commercial goods and services as a government prime or subcontractor. These contracts are performed in the U.S., overseas, or in combat zones. It is a very broad practice, which makes it interesting.
Predicting the future is always tricky — but especially so in government procurement, which is affected by politics and world events. For example, post 9/11, I had a client installing baggage screening equipment in 435 airports around the country on an emergency basis. Similarly, roughly 10 years ago a client with little DoD experience in a single year performed subcontracts totaling $500 million on the assembly and integration of Mine Resistant Ambush Protected (MRAP) vehicles. Certainly, the immediate trend is for reduced spending, leading to increased competition, greater demands by the government to obtain the intellectual property of contractors as a part of an acquisition so that future procurements can be competitively awarded, and overall greater compliance expectations by the government with harsher punitive action for violations. However, as the administration considers options against Syria for using chemical weapons, all these expectations could change overnight. Remember Pearl Harbor? 9/11? World events can have an immediate impact on government procurement and things can change with little warning.
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