The procurement of goods and services by federal, state and local governments presents lucrative opportunities for a wide range of businesses. Each year, billions of dollars in government contracts are awarded to companies that are able to competitively offer the goods or services needed. It is critical that these companies have a clear understanding of the complex laws, regulations and contractual provisions involved in dealing with government agencies to help ensure that contracts are developed, executed and administered in a manner that maximizes benefits and minimizes risks. Additionally, businesses need to stay abreast of material changes emanating from regulatory and statutory bodies, which has led to a marked increase in oversight and investigations.
Our Government Contracting practice focuses on the full breadth of legal issues related to government contracts law, many of which are unique to government contracts. We have worked with clients on matters involving the majority of federal agencies, including the Departments of Defense, Energy and State; General Services Administration; Environmental Protection Agency; and Small Business Administration (SBA), as well as a wide range of state and municipal agencies.
We provide government contractors with a comprehensive range of legal services, enabling them to develop 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 solicitation types
- Bid protests before the U.S. Government Accountability Office (GAO), FAA Office of Dispute Resolution and Acquisition, other federal agencies and the U.S. Court of Federal Claims as well as applicable state and local governmental bodies
- Federal Acquisition Regulation and Defense Federal Acquisition Regulation 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 before and against the U.S. government requires highly specialized skills and knowledge of unique jurisdictions, venues, laws and regulations that are in many ways unlike more typical commercial litigation and contract issues. We represent clients in claims before and with procuring agencies; in various federal venues, including the U.S. Court of Federal Claims, Civilian and Armed Services Boards of Contract Appeals, Federal Aviation Administration’s Office of Dispute Resolution for Acquisition and other federal courts; and in state courts. We also represent clients before the GAO and SBA in connection with bid and size protests.
We assist and represent clients in the preparation, submission, prosecution and appeals of contract claims, including those in the following areas:
- Suspensions of work, delay, impact, loss of productivity and acceleration
- Defective specifications
- Prime contractor-subcontractor disputes
- Changed and differing site conditions as well as geotechnical matters
- Payment disputes
Corporate Transactions Relating to Government Contractors
Mergers, acquisitions, divestitures, joint ventures and teaming in the government contracts area present many issues involved in typical M&A transactions as well as considerations uniquely associated with government contracts. We provide counsel on transactional issues including:
- Minority business enterprise/women business enterprise, small business, service-disabled 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, Fraud Investigations and Suspension/Debarment Actions
We advise clients on internal and government investigations and audits and defending allegations concerning fraud, including:
- False Claims Act actions
- Qui Tam actions
- Grand jury proceedings
- Government audits and procurement fraud investigations
- Proceedings concerning suspension and disbarment from government contracting
- Successfully representing Intervener (a US defense contractor) in Award Protest on approximately $200 million FAA acquisition of ASDE-S (Airport Surveillance Detection Equipment) systems.
- Representing General Contractor in an on-going project involving differing site conditions, delay claims totaling over 330 calendar days, mold issues, defective drawings and specifications, performance issues and Owner's assessment of liquidated damages. Series of delay claims involve, among other things, inadequate design, breach of Spearin doctrine implied warrant of drawings being adequate for their intended purpose, change orders and other issues.
- Representing a subcontractor in breach of contract suit against prime contractor for concrete restoration on renovation and modernization of a major Federal courthouse. Claims consisted of unresolved change orders, including changes for Owner-caused and Prime Contractor-caused delays, Owner stop work orders, differing site conditions and other like claims. Causes of action totaled in excess of $1.28 million (including retention). Settled portion of claims with Prime and are working with prime on pass through claims.
- Successfully representing an engineering and construction management company in connection with Tank Firing Range under United States Army Corps of Engineers prime contract in Kuwait. Resolved approximately $5 million in claims involving defective specifications, differing site conditions, constructive changes and compensable delays.
- Representing a prime contractor and major MEP subcontractor on dispute involving DISA (Defense Information Systems Agency). Prepared and submitted certified claim; acted as lead chair in claims negotiation and, if necessary, claims appeal prosecution.
- Representing a major defense contractor in post-award protest for mobile military air traffic control system contract worth approximately $250 million.
- Representing a subcontractor on unilateral termination for convenience case in which prime contractor refused to pay subcontractor/client for work performed to date. Resulted in recovery of 100 percent of damages claimed following hearing.
- Representing claimant general contractor in dispute with steel supplier over defectively designed and fabricated and/or misfabricated structural steel for U.S. Embassy in Europe.
- Providing legal advice and prepared documentation necessary to form an SBA 8(a) Mentor-Protege entity.
- Successfully representing a Fortune 100 defense and air traffic control contractor in pre-award protest of FAA's announced intent to sole source award for ERAM (En Route Automation Modernization) multibillion-dollar systems contract.
- Successfully representing a voice switch manufacturer in protest for the AFSSVS (Automated Flight Service Station Voice Switch Replacement) Solicitation, valued at approximately $100 million. FAA Administrator ordered Termination for Convenience contract awarded to intervenor and directed award to client. Decision reaffirmed following FAA and Intervener Motions for Reconsideration.
- Representing a design/build contractor in differing site conditions and geotechnical case involving delay, impact and loss of productivity arising out of defective and incomplete geotechnical report provided by military for child development center project.
- Representing a contractor in protest involving BITS II IDIQ Contract.
- Representing a contractor in protest of best value award to competitor. Bases of protest included, improper technical / past performance evaluation; technical leveling; improper conversion to low cost, technically acceptable evaluation. Successfully resulted in agency's offer to settle or, alternatively, perform corrective action. Client successfully settled case and performed as subcontractor.
- Successfully representing the incumbent on multi-year, multi-port/country husbanding services contract for U.S. military against three protesters. Assisted government in all aspect of protest and filings; filed comments in opposition to protest.
- Successfully resolving a bid protest before United States Government Accountability Office on behalf of a client providing communications services in Iraq.
- Representing a mechanical subcontractor and, through liquidation/pass-through agreement, prime contractor on claims that had been pending for over five years at Civilian Board of Contract Appeals (previously the General Services Board of Contract Appeals), including claims for defective owner-supplied contract document's open/pending change orders, loss of productivity and delay, differing site condition/geotechnical issues and other matters. Case settled one year into representation following Alternative Dispute Resolution meetings with Agency and its Counsel.
- Submitting a general contractor's Certified Claim for delay, impact and pending change orders totaling $150,000 plus 219 calendar days of compensable delay. Claim is pending with Department of Labor Contracting Officer. Claim includes unresolved change orders, constructive acceleration, Owner-caused delays and third-party caused delays.
- Representing defendant corporation and chief executive officer personally, from general contractor claim of tortious interference with Prospective Advantage Complaint seeking in excess of $2 million in compensatory and punitive damages arising out of construction contract dispute for an elementary school renovation.
- Successfully representing a subsidiary of a major U.S. construction company in connection with $18 million in claims for changes, differing site conditions, liquidated damages and delays in connection with a government computing facility.
- Represented major global contractor in joint venture with minority contracting firm, in connection with multi-jurisdiction assessment of compliance with minority contracting requirements.
- Successfully protesting a U.S. Marine Corps award decision in a multimillion-dollar acquisition of sniper scopes.
- Prevailing in a dispute on behalf of a partially defaulted contractor against the U.S. Army, resulting in settlement and reinstatement of defaulted portion of the contract, as well as forgiveness of liquidated damages assessed by the government.
- Defending a client against liquidated damages wrongly assessed for weather and government-caused delays in connection with the construction of new agency headquarters.
- Successfully enhancing a compliance program and negotiating a settlement with an executive agency to avoid debarment from government programs.
- Counseling contractors on compliance with domestic sourcing statutes, including the Buy American provision of the American Recovery and Reinvestment Act, the Buy American Act of 1933, the Trade Agreements Act of 1979, The Buy America Act and the Berry Amendment.
- Developing a guide for use by a government contractor to determine whether a product complies with the Buy American Act or is covered by any of 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 government contractors' intellectual property when selling both commercial and noncommercial items to the government and for solicited and unsolicited proposals.
- Discovering Truth in Negotiation Act risks during due diligence in connection with the acquisition of a contractor, allowing the purchasing entity to manage risks associated with the acquisition.
- Counseling the U.S. Air Force on compliance with statutes and regulations applicable to privatizing housing for service members.
- Counseling the U.S. Navy on compliance with base realignment and reuse statutes and regulations.
- Successfully representing an ENR Top 10 Contractor in two projects involving over $4.0 million in delay, changes, and differing site conditions claims against Corps of Engineers construction of stormwater treatment systems in South Florida.
- Litigating and resolving constructive changes in excess of $1.5 million against federal government agencies on project involving environmental and geotechnical site investigation and suitability analyses. Claims involved change of circumstances from time of contract award to time of performance.
- 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 Defense Contract Supply Center, Columbus.
- Assisting and advising a contractor in preparation of Request for Equitable Adjustment for constructive changes against NAVFAC on military construction in Northern Africa.
- Successfully representing a subcontractor on a National Parks project involving national military cemeteries.
- Successfully representing an ENR Top 10 Contractor on GAO bid protests, including protests involving the Defense Policy Research Initiative (DPRI) and the relocation of Marines to Guam.
- Successfully representing an ENR Top 10 Contractor on GAO bid protests involving $71 million Performance Based Remediation with the United States Army.
- Representing a civil works contractor in a size protest involving the SBA and SBA Special Program certifications.
- Representing a NISH contractor with respect to claims on services contract at major Midwest military facility.
- Representing a Women-Owned, Service Disabled Veteran Owned Business regarding SBA and VA eligibility.
- Advising a biomedical innovation company regarding Other Transactions with Defense Advanced Research Projects Agency.
Infrastructure Priorities Under the Trump Administration - Construction Update
February 23, 2017
September 22, 2016