We advise and assist clients in responding to pre-award and post-award audits and investigations by the Defense Contract Audit Agency, agency inspectors general, and other federal and state auditing agencies. Our team participates in audits as an integral part of the contractor’s team to improve the efficiency and quality of client audit responses and to reduce risk, expense and disruption.
We represent clients in procurement protest proceedings before the Government Accountability Office, the United States Court of Federal Claims, and the Federal Aviation Administration’s Office of Dispute Resolution for Acquisition (ODRA). These proceedings may involve defending a contract award to the client, or challenging solicitation requirements or contract awards to others.
Government contractors are subject to numerous federal laws, regulations, and executive orders applicable to federal contracts, and to state and local contracts that are funded in whole or in part with federal financial assistance. We advise and assist Fortune 500 companies as well as the smallest of small businesses, many of which are family owned. Providing compliance advice is a core component of what we do every day. We help clients to not only understand their contractual and compliance obligations, but also to develop the policies, procedures, and validation methodologies to ensure those requirements are satisfied.
We represent companies in connection with conducting diligence and obtaining registrations and approvals for the acquisition of government contractors or facilities, or businesses that already have national security registrations, such as ITAR. We collaborate closely with our transaction colleagues to provide seamless input to help ensure that risks are identified, mitigated and protected during the negotiation process.
Companies that conduct business with the government need effective codes of conduct as well as business ethics and compliance programs. Clients routinely learn – sometimes the hard way – that there is no one-size-fits-all approach to developing an effective and meaningful Code of Conduct, one that truly reflects the core values of the company, its owners, directors, executives, and employees. We have worked with clients in most industries to address issues vital to an effective and efficient program of business conduct and ethics.
Capturing the contract award is just the first step in a much longer path to success that may involve performance controversies, interpretational disagreements, and disputes. Resolving these situations may require preparation of a request for equitable adjustment under the Changes clause, or the submission of a formal claim under the Disputes clause. REA’s that are not mutually resolved may give rise to a claim, and claims that are not mutually resolved may give rise to claim appeals before a Board of Contract Appeals or the Court of Federal Claims. Our attorneys are experienced in helping clients assess whether they are entitled to relief (i.e., more money, more time, or other relief), preparing REA’s and claims, negotiating with agency officials and, if necessary, litigating the claim appeals.
Every contract and program involves learning curve for the contractor team, (consisting of management, program managers, production personnel, accounting folks, etc.) and the government team. There is also a learning curve for the legal advisors. We believe that early engagement with legal counsel – even before a problem surfaces – is a best practice to get up to speed and be prepared when and if a controversy develops. Our goal is to put each client in the best possible legal and business position to avoid disputes from the get-go. And, if a controversy develops, we work early on to put the client in the best possible position to prevail on the merits.
We represent many suppliers of commercial products and services who sell directly to federal, state, and local governments, or through single-award, multiple-award, and federal supply schedule contract programs. The purchase of commercial items and “commercial off the shelf” (COTS) items are routinely conducted under FAR Subpart 12 and its implementing clauses at FAR 52.212-3, 4 and 5. We routinely advise clients on the compliance obligations and contract terms and conditions that apply to the prime contractor, as well as the requirements that are required to be flowed-down to lower tier subcontractors, vendors, and supply chain participants.
The federal government invests billions of dollars annually in research and development. These awards often involve non-procurement agreements, such as cooperative agreements, grants, and OTAs, as well as traditional procurement contracts. Regardless of the form of the agreement, these undertakings are all subject to the requirements of the Bayh-Dole Act, under which the federal government is entitled to certain minimum rights to use, practice and disclose data, and inventions developed under a federal funding agreement. In a nutshell, if the federal government paid for all or a portion of the development, it is entitled to certain rights.
The rules, regulations, and contract clauses implementing the requirements of the Bayh-Dole Act are extensive, complicated, and unforgiving to those contractors who fail to comply with the various requirements. Among other things, contractors are required to regularly consider and determine whether they have conceived or reduced to practice a “subject invention” in performance of the agreement and if so, they must timely disclose that invention to the funding agency. Contractors must also timely notify the funding agency of their election whether to retain title to any subject invention. Finally, the contractor must endeavor to pursue patent protection of any subject invention to which it elects to retain title, and include an attributional statement in the patent application.
We regularly conduct client training sessions in this highly important area of contractor compliance. We work with clients to develop and adopt best practices to ensure timely compliance with all obligations. When a client discovers that it has overlooked a requirement, thereby encumbering its title interest in a subject invention, we work with the client to help resolve the oversight and remove the encumbrance.
Our government contracts attorneys work closely with our environmental attorneys. For example, we are advising a hazardous waste remediation company on the resolution of current and future disputes with the government.
Our environmental team, among other things, advocates public policy positions before federal and state administrative bodies for companies and industrial trade associations, including the issues raised by the Office of Federal Procurement Policy’s green procurement initiative. Together, we provide comprehensive counseling and strategies on environmental matters for businesses operating in the government sector. Our team of multidisciplinary attorneys are working with clients to address increasing regulatory, contractual, and business requirements for “green” products, services, and processes.
