Doing business with the federal government presents businesses with not just tremendous opportunities but also significant challenges and risks. Our attorneys have more than 25 years of experience helping clients overcome those challenges and mitigate those risks. We have experience resolving disputes with virtually every major procuring agency in the federal government.
Our Government Contracts Practice experience and successes include work in the following areas, among others:
- Audits and Investigations
- Bid Protests
- Claim and REA Resolution
- Contingency Operations and Reconstruction Contracting
- Data Rights and Intellectual Property
- Internal Investigations
- Procurement Fraud and False Claims
- Socio-Economic/Small Business Issues
- Suspension and Debarment
- Teaming Agreements, Joint Ventures and Subcontracts
Audits and Investigations
Virtually every government contractor is familiar with an audit by the Defense Contract Audit Agency or an Office of Inspector General financial or incurred cost audit. We routinely provide counsel to clients in preparing for and responding to such audits, including developing responses to costs questioned by auditors.
In addition to financial audits, agency Inspectors General also routinely conduct performance audits to determine, among other things, compliance by the agency and/or contractor with laws, rules and regulations. These performance audits can have significant negative effects on contractors. We work with clients through the initial audit request, the draft discussion report and the final audit report to ensure the government complies with generally accepted government auditing standards and that the findings and recommendations are supported and justified, including preparation of formal comments on the final draft report.
We are uniquely qualified to assist clients in responding to such audits, as one of our team members has significant experience advising on and directing both accounting and performance audits while in government service.
In addition to preparing for and responding to audits, we have significant experience responding to government investigations. A subpoena from an Inspector General or the U.S. Department of Justice is often the first sign a contractor receives of a government investigation. We help clients coordinate responses to subpoenas, negotiate modifications to such subpoenas and ensure clients' compliance with all other aspects of federal investigations, including implementation of document protection and related measures.
Bid protests serve and important function in federal procurement, ensuring that agencies and their acquisitions follow the applicable procurement statutes and regulations. All companies involved in the federal acquisition process must understand the bid protest process and their rights in that process to ensure that their proposals are carefully and correctly evaluated and source selection decisions are properly justified.
However, just because a contractor has a right to protest does not mean it always should. We have experience on both sides of this issue, as former agency counsel and as counsel for contractors, and have reviewed hundreds and hundreds of solicitations and proposals, and participated in a similar number of debriefings. Because of our experience, we recognize almost immediately when a protest has a reasonable chance of success and when it does not, and in the latter case counsel our clients to move forward to the next procurement.
We have successfully handled numerous protests on behalf of clients as protestor (challenging contract award decisions) as well as intervenor (attempting to retain awarded contracts). We represent our clients at agency level protests, as well as protests before the Government Accountability Office (GAO) and United States Court of Federal Claims. Our attorneys’ have significant success in the critical areas of bid protests, including:
- Defective solicitations
- Socio-economic set-asides and preferences
- Sole source contracts
- Task orders and IDIQ contracts
- Federal Supply Schedule contracts
- Competitive range determinations
- Clarifications and discussions
- Past performance evaluations
- Disparate treatment and inconsistent evaluations
- Best value determinations and cost-technical tradeoffs
Claim and REA Resolution
Disputes in government contracts, whether between the government and prime contractors or between prime contractors and subcontractors at any tier (or any combination involving those parties), are not inevitable—but they are common. Our attorneys have reviewed, prepared, and/or resolved hundreds of requests for equitable adjustments (REA) and claims. These claims and REA’s frequently turn on laws, regulations, and contract clauses that have no counterpart in commercial contracts and require specific knowledge of federal government contract law.
Our goal in preparing claims and REA’s is to submit a persuasive and well-supported document that gives our client the best chance for an expedient and favorable resolution. When a negotiated resolution is not possible, we aggressively pursue alternative dispute resolution (ADR) options, as ADR is often a better and more cost efficient manner in which to resolve government contract disputes than litigation. Agencies are virtually always willing to consider ADR, so long as it is not inconsistent with the agency’s written policy. There are a wide variety of ADR methods from which to choose and most can be tailored to suit the needs of a particular claim.
When we must, we are happy litigate the claim before the Armed Services Board of Contract Appeals (ASBCA), the Civilian Board of Contract Appeals (CBCA), or the United States Court of Federal Claims (COFC), as appropriate. Our course of action, even if litigation proves necessary, remains focused on achieving a successful resolution as early and efficiently as possible. This approach has allowed us to achieve the favorable results that our clients demand and expect.
Contingency Operations and Reconstruction Contracting
Contingency operations in Iraq and Afghanistan have created numerous contracting opportunities for U.S. and foreign companies, but they also present substantial challenges to the successful completion of such contracts. By their very nature, these contracts are often performed under very difficult circumstances, including the absence of necessary security, transportation and utilities infrastructure. In addition, these contracts frequently involve prime contractors and/or subcontractors with little or no experience in contracting with the US government. When you combine these factors with certain unique contractual terms and generally much less focused contract administration, inspections and oversight provided by the government, problems are almost certain to arise.
We have attorneys on our team that are particularly qualified and have highly relevant experience for addressing these contracts, including active duty military service in Iraq (during both Operation Desert Storm and Operation Iraqi Freedom), and providing procurement advice for contracting officers in Iraq.
We help our clients with the issues they face in this contracting environment, including:
- Contractual and regulatory questions, including Defense Base Act
- Cure notices and termination issues
- Audits and investigations
- Prime contractor/subcontractor disputes
- REAs and claims, including the successful and favorable resolution of claims arising from contracts performed during and after both Iraq conflicts and in Afghanistan
Data Rights and Intellectual Property
Companies must protect rights in their advanced technology and computer software in order to remain competitive. This is particularly true for companies that do business at any level with the federal government because the government obtains broad rights when intellectual property is developed, conceived, or reduced to practice with government funds. Our services include counseling clients on protecting their intellectual property rights in commercial software, software developed or modified for a federal customer, and technical data delivered under government contracts, as well as resolving disputes over such rights between the contractor and the government or between prime contractors and subcontractors. Specific examples of our attorneys’ efforts on behalf of clients in this area include:
- Providing in-house training to contractor personnel on the unique Federal Acquisition Regulation (FAR), Defense Federal Acquisition Regulation Supplement (DFARS), and other supplemental agency regulations regulating the treatment of intellectual property under government contracts.
- Resolving disputes between prime contractors and subcontractors regarding the ownership of and rights to intellectual property developed or partially developed under government contracts.
- Counseling clients with respect to protecting intellectual property rights relating potentially patentable ideas developed and/or reduced to practice before, during and after contract performance.
- Preventing a client’s competitor from using the client’s protected intellectual property to compete against the client.
- Negotiating on behalf of clients with the government to establish and maintain appropriate markings applied to and protection of intellectual property.
Whether in response to internal reports of misconduct or agency investigations, the first step contractors receiving such information is usually assessing the risk through an internal investigation. We have helped clients conduct numerous internal investigations involving a wide range of issues, including alleged violations of company policies, cost mischarging, and violation of various conflicts of interest and ethics statutes and regulations, usually under significant time pressure. We help clients conduct thorough internal investigations to allow clients to evaluate and respond to potential problems.
Our experience and capabilities in this area include:
- Conducted internal investigations in response to allegations involving potential mischarging of costs and improper certifications pertaining to small business programs.
- Conducted internal investigation in response to allegations of procurement integrity violations.
- Conducted internal investigation in response to criminal investigation alleging false status certification based on alleged lack of control.
Procurement Fraud and False Claims
The False Claims Act is a powerful and increasingly-used tool by the government to address allegations of fraud, waste, and abuse, and to respond to contractor claims for increased costs. We help clients address this risk by advising clients regarding their obligations to make disclosures, conducting internal investigations in advance of or in response to a government inquiry, protecting client's interests during communications between the investigators and client personnel, and litigating the fraud allegations in the context of a civil case or assisting defense attorneys in the context of a criminal case.
Our experience and capabilities in this area includes:
- Performed internal investigation and provided assistance to criminal defense counsel defending against allegations involving violations of the False Claims Act.
- Defended a FAA contractor against False Claims Act suit resulting in a settlement without suspension or debarment.
- After being retained by contractor that was under investigation for allegedly violating the False Claims Act, re-wrote the claim upon which the allegations were based and negotiated a settlement, including payment of the claim.
Socio-Economic/Small Business Issues
The Small Business Administration (SBA) provides several programs through which small businesses can compete for government contracts and subcontracts, including the 8(a) Business Development, Small Disadvantaged Business (SDB), Veteran-Owned, Service-Disabled Veteran-Owned, Historically Underutilized Business Zone (HUBZone), Women-Owned, and Mentor-Protégé programs. These programs are highly regulated, however, and small businesses must meet stringent requirements to participate in them. We represent clients with respect to the myriad of issues that arise in relation to socio-economic and small business contracting, including size protests, status protests, small business appeals.
Understanding the rules that apply to small businesses is also important to large government contractors that team with small businesses. For example, prime contractors and certain subcontractors must submit subcontracting plans setting forth specific percentage goals for different types of small businesses. In addition, large businesses frequently team with small businesses under small business set-aside contracts. Both parties must understand and comply with the particular rules applicable to these relationships.
Our relevant experience and capabilities in this area includes:
- We successfully protested a contract awarded in violation of socio-economic preferences contained in the solicitation.
- Prepare and obtain approval of mentor-protégé agreements.
- We persuaded SBA to withdraw decision to de-certify client’s status as a woman-owned small business by establishing both ownership and control of the business.
- In a competitive procurement, we successfully defended client in a HUBZone status protest filed by a competitor.
Suspension and Debarment
Being placed on the “Excluded Parties List” can be devastating for companies that do significant business with the federal government as prime or subcontractors. Suspension or debarment not only renders the company ineligible for federal government work, but, because of reciprocity rules, it can also prevent the company from working for state and local governments. Contractors not only face these risks if they plead or are found guilty of criminal conduct but in a variety of other circumstances as well. For example, the government has aggressively pursued suspension and debarment of companies that violate federal socio-economic laws and regulations, as well as companies that settle civil false claims allegations without an acknowledgement of wrongdoing. Indeed, as is now often the case, there need be no related criminal or civil matter before an agency propose a contractor for suspension or debarment, as many agencies pursue such action based solely on the investigative reports by agency investigators.
We have significant experience representing contractors faced with potential or actual suspension or debarment. Our relevant experience and capabilities includes:
- We persuaded the agency debarment official to withdraw a proposed debarment by conducting our own investigation and refuting the allegations on which the proposed debarment was based.
- On behalf of a contractor for the FAA, we settled allegations of violation of the False Claims Act without suspension or debarment.
- We prepared and implemented a compliance program for a contractor to establish its present responsibility
- We conducted an internal investigation and prepared a detailed report, persuading the agency debarment official to withdraw a proposed debarment based on alleged violations of certain labor standards.
- We provide regular compliance training to clients to avoid issues that may result in potential suspension and/or debarment.
Teaming Agreements, Joint Ventures and Subcontracts
Few large government contracts are fully self-performed. Indeed, it is common for contractors not only to merely subcontract, but to form teams or joint ventures to pursue and perform large government contracts. We frequently advise clients on issues relating to the formation of teaming agreements and joint ventures, including analyzing and drafting agreements between and among government contractors. We routinely draft and negotiate subcontracts on behalf of both prime and subcontractors. We also help clients resolve issues when the relationship worsens or negotiations fail, or when disputes between the parties arise.
Our relevant experience and capabilities in this area includes:
- Assisted client in the continued performance of the contract after the joint venture of which it was managing member dissolved.
- Drafted teaming agreements and drafted and negotiated related subcontracts on behalf of the prime contractor on a world-wide ID/IQ contract for architectural & engineering and construction services.
- Successfully defended client against allegations of breach of teaming agreement by establishing failure of condition precedent.
- Resolved a multi-million dollar dispute between team members through mediation in which our client paid less than five percent of the amount claimed.
- Conducted internal investigation on behalf of client in a joint venture to establish client’s right to withdraw from the joint venture.
- Established joint venture’s right to continue in the procurement process when a minority member of the joint venture filed for bankruptcy protection.
To help our clients avoid default terminations, we have significant experience in developing effective strategies for addressing contract performance problems and responding to show cause and cure notices. When the government has terminated a contract for default, we have been successful in negotiating the conversion of the terminations to terminations for convenience. We have also been successful in challenging the propriety of default terminations in litigation and defending against Government claims for excess reprocurement costs.
Our relevant experience in this area includes:
- Persuading the government that what it had intended as a deductive modification was, in fact, a constructive termination for convenience, which prevented the government from recouping certain progress payments.
- Developed persuasive responses to government show cause and cure notices, allowing our clients to continue successful and complete performance of the contracts.
- Assisted a surety called to perform after its principal’s contract was terminated for default by arranging for and negotiating contracts between the surety, completing contractor and government to complete the work under the performance bond.
- Negotiated the conversion of a default termination into a termination for convenience of the government.
- Negotiated liquidation and pass through agreements with a client’s subcontractors after the prime contract had been terminated for convenience.
- Negotiated a contract restructure and new baseline with the government on behalf of a contractor on the verge of default.
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- 22AugSeattle, Washington – Jackson Rosenfield LLP partner Mark G. Jackson was recently selected by his peers for inclusion in The Best Lawyers in America® 2018 (Copyright 2011 by Woodword/White, Inc., of Aiken, S.C.) in the...
Because of the breadth of our experience, the clients and industries we serve and the projects on which we work vary greatly. Our clients and projects are located throughout the United States and overseas. The industries in which our clients work include Aerospace and Defense, Communications, Construction, Design and Engineering, Manufacturing, Maritime, Research and Development, Services and Transportation. Regardless of the client, the issue or the project, the mission of our Government Contracts Practice remains the same—to help our clients increase and keep the profits they make providing goods or services in support of contracts with the federal government.
For more detailed discussion of particular matters our attorneys have resolved in the field of government contracts, as well as commentary on selected government contract issues, please review the Case Studies, Recent Results and Insights listed below.
The Coalition Provisional Authority (CPA) replaced the Iraqi government after the fall of Saddam Hussein. The CPA wanted to train Iraqi police officers for what would be the new Iraqi government... read more.
Our client was the incumbent contractor performing armed security guard services at various locations for the Bonneville Power Administration (“BPA”). When that contract neared the end of its term, BPA issued a new solicitation for the work.
- Represented intervenor in protest challenging sufficiency of discussions in negotiated procurement, resulting in denial of protest.
- Recovered funds withheld by government on a commercial items contract for medical coding services, settling a case pending before the Court of Federal Claims.
- Converted a default termination into a termination for convenience, settling a case pending before the ASBCA.
- Recovered funds for extra services ordered and provided but not paid for by FEMA under an emergency services contract, settling a case pending before the Court of Federal Claims.
- Negotiated conversion of default termination of VA construction contract into termination for convenience, settling a case pending before the Court of Federal Claims.
- Persuaded SAF/GCR to withdraw proposed suspension and debarment, which had been based on an AFOSI Report of Investigation alleging fraudulent invoicing under a series of contracts, by conducting internal investigation and refuting AFOSI’s evidence.
Understanding the Ostensible Subcontractor Rule
Small government contractors or 8(a) concerns that rely too heavily on another business for subcontracting may trigger affiliation under the Ostensible Subcontractor Rule. Learn more about what means for small businesses.
Dealing with Touhy: Compelling Non-Party Deposition Testimony from a Government Agent
Litigation arising out of government construction projects often hinges upon valuable testimony from the nonparty government employees who coordinated, supervised, or determined key aspects of the matters in dispute. Litigants can obtain testimony from a government agent or the agency itself, however, they must first navigate the minefield known as “Touhy regulations.”
June 24, 2014
Increasing Your Competitive Edge: Protecting and Managing Your Past Performance Information
A contractor’s past performance has always been a part of the federal procurement system. In addition to being an informal consideration, they can to select contractors that perform well), past performance has long been an express evaluation factor in procurements.
April 10, 2014
Federal Circuit Explains the Difference Between CAS and Cost Principles.
The Federal Circuit’s decision in Raytheon Co. v. United States, No. 2013-5004 & 2013-5006 (Fed. Cir. April 4, 2014) affirms a $59-million judgment arising from a government challenge to Raytheon’s calculation and payment of pension fund adjustments.
March 13, 2014
Suspension and Debarments on the Rise
On March 5, the Interagency Suspension and Debarment Committee (“ISDC”) released a consolidated report to Congress on suspension and debarment developments for government fiscal years 2012 and 2013.