Chapter 8 Rehearsing the Negotiation Plan and Developing the Agenda

Don’t “blow off” rehearsing your negotiation plan with your team members. You’ve spent a lot of time and brain power preparing for the negotiation, and the last thing you want is for sloppy execution to turn all this into wasted time and effort. The crucial step of rehearsing your negotiation plan is habitually ignored by even experienced COs, and it can cripple a negotiation.

Think about it. Your team is probably ad hoc (consisting of people from many different functional areas of your organization who have been put together as team for this negotiation only) and they simply aren’t used to working together. Heck, you don’t even know at this point if they can work together! The only way to get them accustomed to each other is to rehearse the plan.

Rehearsal will also give confidence to all the team members, uncover trouble spots, get folks used to following your directions and lead, and get everyone used to pulling together. I suggest you develop some sort of checklist, or rehearsal plan, that covers, as a minimum:

• Reviewing the negotiation plan and negotiation strategy

• Making sure everyone understands the roles of each team member

• Assigning homework to team members

• Conducting a mock negotiation session

• Reviewing government negotiation “do’s” and “don’ts.”

REVIEW THE NEGOTIATION PLAN AND NEGOTIATION STRATEGY

Sit your team down and review the negotiation plan and negotiation strategy with them. They may have had some input, but it is you that is ultimately responsible for bringing it to fruition. And higher level reviews may have changed certain aspects of the original plan. During the negotiation meeting, you don’t want to be the only person on your team who understands the plan. Can you imagine a football team winning if only the quarterback knew the game plan and strategy?

Make sure all your team members know your general plan. What’s going to be your opening statement? What tactic are you going to lead off with? What are your “give” points? What are your “must” points? In what priority are you planning to introduce them? What are your avoidance points and why are you avoiding them? And so on.

Give your team members a quick education on the type of strategy you have chosen (WIN–LOSE, loss prevention, WIN–WIN, WIN–win) and why you chose that particular strategy. You might even want to use tools you’ve picked up in this book to explain some of the approaches you’ll use to implement the strategy.

Discuss your assessment of the relative power of each party and how you feel that should impact the negotiations. Let your team know what to expect from the other side, given their negotiation history. All this information will give them a better “feel” for the negotiation environment you’re trying to create, so they can contribute to it, not pull against it.

MAKE SURE EVERYONE UNDERSTANDS THE ROLES OF EACH TEAM MEMBER

Everyone on your team should have already been assigned roles in preparing for the negotiation, as we’ve already discussed. You also will assign each member of your team roles to play during the negotiation. Because assigning these roles is part of the tactics of negotiation, we’ll save this discussion for a little later. Right now, just know that your negotiation plan rehearsal gives you one last chance to make sure all your team members understand the roles you have assigned to them and how you expect them to play their roles.

Go one step further. Make sure everyone understands not only their particular roles, but everyone else’s roles too.

ASSIGN HOMEWORK TO YOUR TEAM MEMBERS

You want all your team members to be totally prepared, as you are, for the negotiation, so you may have to assign them some homework. They need to have an in-depth understanding of your negotiation plan, the solicitation, the proposals, the source selection criteria, the other side’s habits, and the general situation surrounding the negotiation. They’re going to have to do some reading, usually on their own time, to be effective team members.

This can be a hard sell for government employees. You can “sell” this more easily if you let them know, right up front at the first kickoff meeting, that there will be homework reading required. Make sure their supervisors know too, so you can ensure their buyin for the time their folks will have to put in and how important this is to a successful negotiation. I suggest even making it a part of your written agenda in your very first kickoff meeting—that way, nobody can say they were unaware of the requirement.

CONDUCT A MOCK NEGOTIATION SESSION

Sometimes you may want to conduct a mock negotiation session as part of your rehearsal. Truthfully, I have rarely seen this, and then only for complex, high-dollar negotiations. With the realities of federal contracting today, you just don’t have time to do it all. However, if you do decide to enact some kind of mock negotiation session, make sure you assign someone to play devil’s advocate— someone on your team, or an outsider, who pretends to be the contractor. His or her job is to poke holes in your plan, disrupt the flow of your mock session, throw in objections, introduce problems, and generally be disagreeable.

It’s much better to grapple with these problems and how to work through them in front of a friendly audience instead of at the actual negotiation table. If you can afford the extra time, a mock session can not only be productive, it can be fun!

REVIEW GOVERNMENT NEGOTIATION “DO’S” AND “DON’TS”

During one of your negotiation preparation meetings, or when you assemble your team to rehearse for the first time, review the government “do’s” and “don’ts” as they relate to negotiations. You know there are some things you simply cannot do as a government negotiator. They don’t! They’re not contracting folks. They need to know basic things like the following: You can’t lie to the other side, even if you’re using it as a tactic. It’s okay on a cop show if you’re trying to get a confession, but it’s not okay for any federal official, even during negotiations.

The FAR calls the complete list of negotiation don’ts limits on exchanges, and you can find them in FAR 15.306(e). The FAR says any government person involved in negotiations can’t engage in conduct that:

• Favors one offeror over another

• Reveals an offeror’s technical solution or any information that would compromise that offeror’s intellectual property to another offeror

• Reveals an offeror’s price to anyone without their permission

• Reveals the names of individuals providing reference information about an offeror’s past performance

• Knowingly furnishes source selection information in violation of the FAR and the law.

You’re probably already very familiar with these things, but the rest of your team most likely isn’t trained in contracting. Tell your team what they need to know to keep them out of trouble and to allow the negotiation to continue without a hitch. This is also a great time to rebrief the team on procurement integrity, ethics, and how to handle source selection information. Some COs I know make it a point to bring in lawyers to help them with this part. I think that’s a great idea.

By accomplishing all these steps when you rehearse your plan, you’re actually doing more than simply rehearsing your plan. You’re giving your team practice in working together as a team before they actually have to do it in front of the other side. You’re making sure your team will pull together, know what they’re talking about, and know what not to do and say. If you impart this knowledge to your team in an agreeable way, it will also go a long way in helping establish your credibility as the expert in the process of negotiating, which will solidify in their minds that you are the leader of the negotiating team—and that is crucial to success.

DEVELOP A NEGOTIATION AGENDA

After you’ve finished your negotiation preparations and rehearsed the plan, your next step is to develop an agenda for the actual negotiation session. The agenda is a critical tool to get the negotiations started right, and to assert control over the pace and the process. The agenda will also be how you let the other side know critical things like location, time, access requirements, and the like, without giving them your entire negotiation plan.

Here’s a crucial point: Never let the other side take control of setting or running the agenda. Remember, you want to keep the “power of the written word” as an important negotiation advantage. In fact, sending out your draft agenda for contractor comment may be your first preplanned tactic. If the contractor agrees to it, you have already started them in the habit of saying yes to you. If they disagree or provide comments or suggestions, they have just divulged additional information about their position you didn’t have previously.

You can now use this additional information to your advantage to detect possible shifts of power. As a result, you may discover hidden agendas, or even have enough information to revise your BATNA or your opinion of theirs. Remember that information—any additional information—increases your negotiating power.

In your agenda, you’ll first want to provide general information such as time, location, breaks, duration, points of contact, seating capacity, and so forth. Next, you select and list the negotiation issues you wish to discuss, in the priority that supports your strategy. Remember, contractor feedback about the items and issues you’ve said you want to discuss and their order of priority can give you valuable insight into their strategy, interests, priorities, and negotiation approach.

Don’t leave the rest of your team members out of the process. Before you send the draft agenda to the contractor for review and comment, make sure your own team reviews it and makes suggestions.

You then should send it to the contractor in “draft” form, labeling it as a “proposed agenda.” Make sure to give them enough time to respond. As you have already guessed, this draft agenda accomplishes more than just finalizing the order of events in the negotiation. You can use it as a fishing expedition!

When you send out your draft agenda, you’ll also want to have the other side answer a few “procedural” questions. Have them tell you who their lead negotiator will be and what authority he or she has to finalize any agreements or changes you come up with during the negotiation session. This is important information, since you want to make sure their lead negotiator does indeed have authority to bind their company. This ensures that your negotiation session is truly conclusive, and prevents the other side from using a negotiation tactic called ambiguous authority against you, which we’ll talk about later.

You also want to find out the title of their lead negotiator. I used to love negotiations when I found out the lead negotiator for the contractor was one of their marketing reps. Bad mistake! Think about it. What’s the job of a marketing rep? To make promises to potential customers to capture more business. That’s what they’re trained to do, and usually their performance reports and bonuses are tied to how much business they can bring in. Their job is to make the other side happy. This puts them in a bad situation if they are also tapped to negotiate the final terms and conditions of a deal. They, in essence, have a built-in conflict of interest, don’t they? Do you think they’ll be hardball negotiators? Give me a negotiation with a marketing rep any day. If you find this to be the case, your negotiation power has just increased tremendously.

You’ll also want to have the other side tell you how many people they plan on bringing to the negotiation, who these folks will be, and what expertise they represent. The main reason will be to make sure you have enough chairs, refreshments, and so forth, to accommodate them. Another reason is to make sure your team matches their expertise person for person. If one of their negotiation team members is a lawyer, for example, you might want to consider adding a lawyer of your own to your negotiation team. Knowing how many folks the other side is bringing also sets you up to use the tactic of strength in numbers, which we’ll talk about later.

When you get your draft agenda back from the other side, with or without additional comments from them, you now can finalize the agenda. Remember the comments that come back on your draft agenda can give you additional insights into the other side, so look for these things first. If the other side has provided comments or suggestions, it doesn’t necessarily mean you have to change your agenda; that’s totally your call. Remember, you control the process!

Update your agenda based on the comments you have received (or not) and change it from “draft” to “final.” Make sure to provide a copy to everyone who will attend the negotiation session on your side, a copy to key members of your supporting cast who may not actually participate in the negotiation (such as program folks), a copy to the contractor, and a copy to your boss.

Now you’re ready to negotiate. You’ve assembled and briefed your team, done your data gathering, established your priorities and your prenegotiation objectives, and researched the other side. You’ve developed your negotiation plan, taking into account your assessment of power, and you’ve established a BATNA. You’ve picked a negotiation strategy and you’ve rehearsed it. Finally, you’ve developed an agenda to use as a road map for the negotiation session.

But before you sit down to negotiate, you need to be aware of certain negotiation tactics—some legitimate, some shady—that you can use or that may be used against you. That’s the subject of the next part of this book.