Each year, billions of dollars in government contracts are awarded to companies to provide a wide array of goods and services to government agencies, including federal, state and local governments. While these contracts can be very lucrative, having governmental entities as customers presents additional challenges for businesses. Significant care is required to navigate the complex laws, regulations and contractual provisions that govern the provision of goods and services to government agencies, and to ensure that contracts are developed, executed and administered to maximize benefits and minimize risks to the contractor. Government contractors must also remain vigilant in order to comply with evolving or new requirements and increasing oversight from their government customers.
Thompson Hine’s Government Contracts practice has the experience and know-how to assist clients in all aspects of contracting with federal, state and local government entities. We have worked with clients on issues relating to most federal agencies, including the Department of Defense (DoD) and all of the armed forces branches; Departments of Energy, Interior, Veterans Affairs (VA), Agriculture and State; Federal Emergency Management Agency (FEMA); Federal Aviation Administration (FAA); General Services Administration (GSA); Environmental Protection Agency (EPA); and Small Business Administration (SBA).
In addition to the foregoing, it is important to note that many of the federal-specific issues arising out of government contracts often extend to state and local government contracts. We have extensive experience in dealing with those non-federal government contracts issues, having performed work in numerous localities and state jurisdictions, including, by way of example, Arizona, California, Florida, Georgia, Maryland, New Mexico, New York, Ohio, Oregon, Pennsylvania, Texas, Virginia and the District of Columbia. Our experience also includes localities that receive federal monies for which the Federal Acquisition Regulation (FAR) provisions are incorporated.
As part of a full-service business law firm, our Government Contracts lawyers receive support as needed from their colleagues in other practice areas. For example, when white collar crime or False Claims Act issues arise, or when internal investigations are necessary, our Government Contracts team works hand-in-hand with our White Collar Crime, Internal Investigations & Government Enforcement practice. We have performed many such investigations and representations on behalf of contractors and subcontractors alike.
Thompson Hine’s government contracts services include general regulatory and compliance issues as well as business transactional and contentious work (including bid protests and claims). With the multifaceted advice and services we provide, our clients are able to develop and maintain beneficial working relationships with government agencies while protecting their interests.
Contract Development & Administration
We represent and assist our clients in contract formation and post-award matters, including:
- Invitations for bids, requests for proposals, requests for qualifications and other types of solicitation
- Bid protests before the U.S. Government Accountability Office (GAO), FAA Office of Dispute Resolution for Acquisition (ODRA), federal agencies and the U.S. Court of Federal Claims
- Federal Acquisition Regulation and Defense Federal Acquisition Regulation Supplement (DFARS) interpretation and compliance
- Contract warranties, invoicing and cost principles
- Contract changes and terminations
- Defective pricing and cost disallowance
- Overdue payments
- Ownership and protection of technical data and intellectual property rights
Litigation involving the U.S. government is different from typical commercial litigation. We represent clients before federal agencies, in federal courts including the Court of Federal Claims, the Civilian and Armed Services Boards of Contract Appeals and the FAA’s Office of Dispute Resolution for Acquisition. We also represent clients before the GAO, SBA and VA on bid and size/status protests.
We assist clients in preparing, submitting and prosecuting claims, including those for:
- Suspensions of work, delay, impact, loss of productivity and acceleration
- Constructive and directed changes
- Defective specifications
- Prime contractor-subcontractor disputes
- Changed and differing site conditions and geotechnical matters
- Payment disputes
Corporate Transactions Relating to Government Contractors
Mergers, acquisitions, divestitures, joint ventures and teaming agreements involving government contracts include many issues not typical of purely commercial M&A transactions. In these matters, we provide counsel on issues such as:
- Small businesses, minority business enterprises, women-owned small businesses, veteran-owned small businesses, service-disabled veteran-owned businesses and other participation programs
- Ownership by non-U.S. persons and Exon-Florio submissions
- Due diligence
- Maintenance of security clearances
- Contract novation
- Cost recovery limitations
- Security requirements
- Conflicts of interest and organizational conflicts of interest
- Transfer and use of intellectual property and technical data rights
Whistleblower, False Claims Act & Fraud Investigations
Entire sections of the law and the Federal Acquisition Regulations discuss with heightened specificity the requirements for proper and accurate pricing, cost accounting, certification of pricing and other ethical and business practices requirements. Failing to comply with any one of these many rules and procedures can subject contractors and subcontractors alike to substantial liability under the False Claims Act. Enforcement by the Department of Justice and various agency Offices of Inspector General has increased significantly over the last few years and headlines regularly highlight the millions of dollars recovered from companies in sectors including defense, aerospace, construction and health care. Adding to the challenges companies face is that private whistleblowers can bring qui tam lawsuits against an organization, even when the government does not. Likewise, there are pervasive and extensive ethics rules and obligations imposed on businesses performing work with or for the government.
Thompson Hine’s White Collar Crime and Government Contracts teams collaborate to aggressively defend False Claims Act cases and other government fraud. Our experience ranges from advising on proactive measures and providing mandatory and optional training to companies to reduce False Claims Act and ethics violations-related risks, to effectively representing companies and individuals in trials and appeals. Our experience includes advising and defending on:
- False Claims Act actions
- Qui tam actions
- Grand jury proceedings
- Government audits and procurement fraud investigations
- Government bribery allegations
- SBA set-aside and size protests and inquiries (small businesses, HUBZone small business concerns, service-disabled veteran-owned small business concerns, economically disadvantaged women-owned small business concerns and women-owned small business concerns)
- Davis-Bacon and Service Contract Act violations and investigations
- U.S. Attorney and Inspector General investigations and court actions
We are often able to help clients achieve a successful settlement early in the litigation process. Our teams are also knowledgeable about collateral issues involved with these cases, such as suspension and debarment.
Suspension & Debarment Actions
Suspension and debarment can be the death knell for a government contractor. Over the last few years, suspensions and debarments across almost all government agencies have substantially increased. The government can issue a suspension or debarment for many reasons ranging from fraud to inadequate contract performance to failure to comply with the Federal Acquisition Regulation mandatory disclosure rules.
Our attorneys have experience practicing before a wide range of agency suspension and debarment officials. We have experience advising contractors before any official action is taken by the government on how to avoid suspension and debarment if causes may exist, and if an action is pending, we are knowledgeable in responding to that action, addressing the root causes giving rise to the suspension or debarment proceeding and negotiating administrative agreements.
Our suspension and debarment attorneys are also knowledgeable about collateral issues involved with suspension and debarment cases such as parallel criminal investigations or False Claims Act allegations. As a result, our attorneys develop comprehensive strategies that address all of an entity’s issues efficiently and effectively.
State & Local Procurement Experience
In addition to the federal level, our firm has extensive and broad experience in representing contractors and subcontractors in all facets of government contracting at the state and local levels. In general, these contract regimes, while not necessarily identical, follow closely the federal model of public procurement. Our familiarity with the federal level of procurement gives our team inherent advantages in understanding and representing clients and their needs in the state and local contracting environment. We have represented clients in many fora at all levels, in matters ranging from general government contracts advice and review to protests, injunctive matters and claims preparation and prosecution. We have also advised clients in state and local prevailing wage laws and investigations, white collar matters, investigations and claims preparation and prosecution. These efforts have allowed us to work on non-federal public procurements across the country, ranging from California and Oregon to Arizona, New York, Pennsylvania, Massachusetts and Illinois. We have worked in localities ranging from New York City and Washington, D.C. to counties in Maryland, Pennsylvania, Illinois, the Carolinas and elsewhere.
The following is a sample of our experience in government contracts matters:
- Prevailing in representing Intervener (a U.S. defense contractor) in an award protest on a $200 million FAA acquisition of airport surveillance detection equipment systems (ASDE-X).
- Representing a prime contractor and major manufacturing extension partnership (MEP) subcontractor in a dispute involving the Defense Information Systems Agency. Prepared and submitted certified claim; led claims negotiation and claims appeal prosecution.
- Representing a major defense contractor in a post-award protest for a mobile military air traffic control system contract worth approximately $250 million.
- Providing legal advice and preparing documentation necessary to form an SBA 8(a) Mentor-Protégé entity. Advised on and prepared SBA 8(a) Teaming Agreements.
- Representing a Fortune 100 defense and air traffic control contractor in a pre-award protest of FAA’s announced intent to sole-source an award for a multibillion-dollar en route automation modernization (ERAM) systems contract.
- Defending a GAO bid protest by and against Engineering News-Record (ENR) Top Ten contractors involving a performance-based environmental remediation contract on a DoD facility worth more than $40 million.
- Prevailing in protest of a best value award to a client’s competitor for improper technical/past performance evaluation, technical leveling, and improper conversion to low cost and technically acceptable evaluation.
- Representing the incumbent on multiyear, multiport/country husbanding services contract for the U.S. military against three protesters.
- Representing a major global contractor in a joint venture with a minority contracting firm with multijurisdictional assessment of compliance with minority contracting requirements.
- Prevailing in a dispute for a partially defaulted contractor against the U.S. Army, resulting in reinstatement of a defaulted portion of the contract and abatement of liquidated damages.
- Enhancing a compliance program and negotiating a settlement with an executive agency to avoid client’s debarment from government programs.
- Conducting an internal investigation and submitting mandatory disclosure to a government agency regarding alleged violations of government procurement law. After meeting with the agency inspector general, we obtained a favorable disposition with the government taking no adverse action.
- Counseling contractors on compliance with domestic sourcing statutes, including the Buy American provision of the American Recovery and Reinvestment Act, the Buy American Act (BAA) of 1933, the Trade Agreements Act of 1979 and the Berry Amendment.
- Developing a guide for government contractors to determine whether a product complies with the BAA or is covered by that statute’s exceptions.
- Counseling contractors on compliance with statutes and regulations governing foreign military sales and foreign military financing of direct commercial contracts.
- Developing a guide to protect a government contractor’s intellectual property when selling both commercial and noncommercial items to the government and for solicited and unsolicited proposals.
- Identifying Truth in Negotiation Act risks during due diligence for the acquisition of a contractor, allowing the purchasing entity to mitigate risks associated with the acquisition.
- Representing a major defense contractor against claims of government overpayment and interest asserted by the Defense Finance Accounting Services (DFAS).
- Representing a small business supplier in defense of false claims allegations by the Defense Supply Center Columbus (DSCC).
- Representing a civil works contractor in a size protest involving SBA and SBA Special Program certifications on U.S. Army Corps of Engineers project with the Pittsburgh District.
- Representing a National Industries for the Severely Handicapped (NISH, now called SourceAmerica) contractor regarding claims on janitorial services contract at major Midwest military facility.
- Representing a women-owned service-disabled veteran-owned business (SDVOB) regarding SBA and VA eligibility.
- Convincing the VA to reinstate eligibility after an initial finding of affiliation with non-SDVOB business.
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February 01, 2017
GAO’s Bid Protest Annual Report Shows Record High Effectiveness Rate While NDAA Calls for Bid Protest Study - Government Contracts Update
January 10, 2017
Business Law Update – Fall 2016 - Thompson Hine Newsletter
October 31, 2016
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October 26, 2016
Effective Dates Approaching for Fair Pay and Safe Workplaces Final Rule Implementation - Government Contracts Update
October 13, 2016
Department of Labor Issues Final Rule Requiring Government Contractors to Provide Paid Sick Leave - Labor & Employment @lert
October 03, 2016
September 26, 2016
Supreme Court Decision Highlights Risks Related to Federal Programs, Contracts and Grants - Construction & Government Contracts Update
August 04, 2016
Proposed Changes to Federal Bid Protest Procedures - Government Contracts Update
May 19, 2016
Additional DoD Guidance for Contractors on Cybersecurity Safeguards and Reporting - Government Contracts Update
December 14, 2015
OFCCP Issues Final Rule on Pay Transparency for Government Contractors - Labor & Employment @lert
September 18, 2015
New EO: Government Contractors Must Cough Up Sick Days for Covered Employees - Government Contracts Update
September 16, 2015
DoD Issues Interim Rule on Cloud Cybersecurity - Government Contracts Update
August 27, 2015
OMB Releases Draft Cybersecurity Guidance; New FAR Regulations on the Horizon - Government Contracts Update
August 13, 2015
New U.S. Government-Backed Standards for Protecting Data Will Affect Federal Contractors - Government Contracts Update
June 26, 2015
Increased Cybersecurity Requirements for Government Contracts - Government Contracts Update
May 07, 2015
December 03, 2014
OFCCP Issues New Proposed Antiretaliation Regulations for Government Contractors - Labor & Employment @lert
October 01, 2014
September 01, 2014
June 04, 2014
March 20, 2013
“Just Say No” — GAO No Longer Considering Service-Disabled Veteran-Owned Set-Aside Protests - Government Contracts Update
January 14, 2013