Business Negotiation October 30, 2013

Challenging a Regulation: An Unusual Approach

There is an unusual defense against regulations for those with the courage to use it. I learned the technique from an old contract administrator, Bill Van Allen, who had done battle with the government for years. He called it the “But it doesn’t apply in this case” approach.

When a government bureaucrat said to my friend, “I can’t grant you this or that term, condition, or benefit because the regulation prohibits it,” he would, after a considerable pause, say, “Yes, but it doesn’t apply in this case.” A perplexed and stunned silence usually followed. When the other party said, “It does apply,” my friend would counter, “Just read it carefully and you’ll see that it doesn’t apply in this case.”

This tactic usually forced the government representative into carefully reading the regulation, usually for the first time. These statutes are invariable hard to read and understand. If, after rereading the passage in question, the representative said, with considerably less assurance, “but I think it does apply in this case,” Bill would pick some ambiguous or difficult section and read it out loud. He would then insist that his reading of the regulation made sense in the specific situation being discussed. His viewpoint did not always prevail, but it did more times than even he expected. There were good reasons.

Government regulations, laws and rules are vulnerable to argument because they are themselves products of a negotiation.

The published regulation represents a compromise among the people who analyzed, wrote and reviewed it. Each participant had a somewhat different viewpoint. The final version always represents a compromise involving many factors.

What Bill taught me was that the limits imposed by regulations and laws are often subject to negotiation at the table. Whatever the regulation says is subject to challenge. The bargaining situation in which one finds oneself is always different from the original scope of the regulation. The issues and conditions covered by the regulation may be out of date, smaller or larger, or of greater or lesser complexity than those on the table. Political and social forces may have changed. When people search for exceptions to rules and regulations, especially complicated ones, they find them-but it takes persistence, time and effort.

Gladstone said, “Good laws make it easier to do right.” He did not say, “Good laws make people do right.” From a negotiating standpoint, arm yourself with the best governmental regulations limits you can find. If the other party has them on their side, proceed to discover why they do not apply in this case.

Let Thomas Jefferson be your guide. When asked about the suitability of laws in changing times, he replied, “We might as well require a man to wear still the coat which fitted him as a boy.” Your task is to demonstrate to the other party that the limiting rule or regulation which they confront you with doesn’t fit the current situation.

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