Practice Areas: Government Contracts

Winning and performing government contracts requires businesses to comply with a host of statutes, regulations, and licensing requirements on federal, state, and local levels. McGuireWoods untangles the web of rules and requirements at every level. Together with our full-service public affairs subsidiary McGuireWoods Consulting, we offer clients “one-stop shopping” in pursuing government work and in complying with procurement-related regulations set by all types of governing bodies throughout the United States.

Our Government Contracts lawyers are both counselors and litigators, who approach issues practically with the objective of achieving the best results for our clients promptly and efficiently. They have the substantive expertise that will permit them to counsel clients effectively and add value to their business operations by avoiding problems before they develop. If disputes arise, our Government Contracts lawyers represent clients vigorously, settling cases if possible, or proceeding through trial and appeal if necessary.

When appropriate to address particular issues or projects, our Government Contracts lawyers draw upon our collective expertise by teaming with lawyers in other practice areas, such as antitrust and trade regulation; government, regulatory and criminal investigations; international; labor and employment; mergers and acquisitions;  and technology and business. Using a team approach, McGuireWoods can efficiently and effectively assist clients in all areas of government contracting, including:

Bid Protests

We know the importance of challenging flawed agency solicitations at the earliest possible stage, to preserve your rights as a contractor. We try to resolve potential disputes over procurements through informal means with the contracting officer or other source selection officials. However, if our client is not selected for contract award, or its award is protested by another bidder or offeror, we can move with the speed required to file or intervene in a protest with the Government Accountability Office (GAO), or to seek or respond to a preliminary injunction motion in the U.S. Court of Federal Claims. Our attorneys have proven records of success in both forums, and also have experience arguing appeals in the U.S. Court of Appeals for the Federal Circuit.

Claims & Requests for Equitable Adjustment

We help clients to negotiate with contracting agencies over out-of-scope work and other changed conditions that can result in unexpected costs. If negotiations do not resolve disputes, we prepare certified claims, requests for equitable adjustment, settlement claims for terminations for convenience, and other relief authorized by the Contract Disputes Act. When contracting officers deny relief in final decisions, we pursue claims in the Boards of Contract Appeals and the U.S. Court of Federal Claims, as well as in appeals to the U.S. Court of Appeals for the Federal Circuit. We also defend clients against termination for default claims by the government.

Contract Formation, Administration & Compliance

We counsel clients on the opportunities and pitfalls in the procurement process, beginning with assessing the contract vehicle for a particular solicitation, whether it be a cost-reimbursement contract, a firm-fixed-price Indefinite-Delivery Indefinite-Quantity (IDIQ) contract with task orders, or the GSA Schedule. We help our clients perform audits and establish procedures to ensure compliance with the numerous certifications required in government contracts regarding pricing, procurement integrity, and environmental and employment regulations. Our lawyers advise clients about dealing with the Import Administration and U.S. Customs and Border Protection regarding the administration of Foreign Trade Sub-Zones, and also have the capability to assist clients in dealing with the Department of Defense regarding the Foreign Military Sales and Foreign Military Financing programs.

Costs and Pricing

We have the know-how to counsel clients on defective pricing claims and other aspects of Truth in Negotiations Act (TINA) compliance, Cost Accounting Standards (CAS), cost allowability, and other cost principles. We can represent clients during audits by the Defense Contract Audit Agency (DCAA), and advise on how to respond most effectively to DCAA audit reports. Although we always attempt in the first instance to reach a favorable settlement, we are also prepared to litigate these issues if needed.

Fraud Investigations and Qui Tam Suits

We advise clients regarding the unique ethical obligations of federal government contractors, such as preventing kickbacks, bribery and illegal gratuities, product substitution, false claims and false statements, and organizational conflicts of interest, as well as the need to comply with lobbying restrictions and procurement integrity principles. We assist clients in drafting codes of conduct and compliance policies, and in structuring corporate compliance programs to educate all of their employees about the added level of scrutiny applied to business dealings with the government.

Upon request, we will conduct an internal investigation to address concerns in advance of any government knowledge, so that our clients stay ahead of possible problems. We also prepare responses to subpoenas and investigations by Congressional committees, agency Inspector Generals, or the Department of Justice, whether for civil or criminal violations of the False Claims Act or other fraud statutes, such as the Major Fraud Act. We will attempt to persuade investigators not to pursue the matter. But, if an audit or investigation goes forward, our lawyers will represent the client in Congressional hearings, grand jury investigations, plea-bargaining sessions, or in all phases of litigation including trial and appeal.

Intellectual Property

We understand the need for contractors to protect their intellectual property when entering into contracts with the government. We help our clients to institute business practices that will guard against granting the government unlimited rights in intellectual property that was not developed at government expense. We prepare and review intellectual property and software license agreements to assure that contractors’ data, patent, copyright, and other intellectual property rights are properly protected. We also represent our clients in court when they need to enforce their existing intellectual property rights.

Joint Ventures and Teaming Arrangements

Even the largest contractors often need to partner with other contractors to pool resources and share risks. We counsel clients on issues such as whether to enter a teaming arrangement or form a joint venture, and help navigate the antitrust and tax considerations involved in forming, operating, and dissolving teams and joint ventures. We also are able to handle disputes with other team or joint venture members when disagreements over performance or dissolution lead to arbitrations or suits in state court or federal district court.

Labor and Employment

Government contractors are subject to unique labor and employment requirements. We counsel clients on compliance with the Department of Labor’s equal opportunity and affirmative action requirements under Executive Order 11246, the Rehabilitation Act of 1973, and the Vietnam Veterans Readjustment Assistance Act of 1974. We also help clients prepare written affirmative action plans that will pass muster with an Office of Federal Contract Compliance Programs (OFCCP) audit or investigation. In addition, we also advise clients on best practices regarding the U.S. Department of Labor’s workplace and labor standards such as the Walsh Healey Act, the Davis Bacon Act, the Service Contract Act and the Contract Work Hours and Safety Standards Act.

Litigation

In addition to litigating claims and bid protests before the Court of Federal Claims and GAO, we represent our clients in arbitrations and federal district court or state court suits between prime contractors and subcontractors, or between higher-tier and lower-tier subcontractors. We use mediation, early neutral evaluation, arbitration, and other alternative dispute resolution (ADR) procedures to resolve disputes with contracting agencies or other contractors in a results-oriented and cost-effective fashion.

Local & State Representation

Local and state governments often have a significant impact on the success or failure of any business. We assist boards, agencies, and commissions in developing policy, and represent clients’ interests before such bodies, including state legislatures and general assemblies; procurement review panels; planning commissions; school boards; city and town councils; and county boards of supervisors.

We also represent clients before public utility commissions; cabinet-level offices; state water control boards; alcohol beverage control boards; waste management boards; transportation boards; boards of corrections; and state departments of health, environmental quality, motor vehicles, taxation, historic resources, professional and occupational regulation, information technology, and general services.

Mergers and Acquisitions

We help clients identify through due diligence the unique risks that arise in the purchase, sale, or reorganization of government contractors, such as anti-assignment prohibitions, novation requirements, valuation of the company’s backlog, past or present audits or investigations, past or present changes, claims or disputes, failure to protect intellectual property rights, and Exon-Florio restrictions on foreign ownership and control (FOCI) that may require notice to the Committee on Foreign Investment in the United States (CFIUS). If the government entity at issue holds any classified contracts, we can prepare the FOCI documents required by the federal government.

Socio-Economic Concerns

We counsel large federal government contractors who are required to submit detailed subcontracting plans on the requirements for those plans, drawing upon our experience advising small, small-disadvantaged, and women-owned contractors on their eligibility for award of set-asides and government preferences pursuant to Small Business Administration (SBA) regulations. We also counsel clients on other socio-economic considerations, such as compliance with the Buy American Act and the Javits-Wagner-O’Day Act.

Suspensions and Debarments

A suspension or debarment can cripple a company that sells goods or services to the government. In suspension and debarment proceedings, we try to negotiate with the debarring or suspending agency, to minimize the impact of any debarment of suspension on other corporate affiliates or divisions. We also will seek judicial review of the agency’s suspension or debarment decision in federal district court or, if the suspension is in connection with a procurement or proposed procurement, in the U.S. Court of Federal Claims.

Representative Matters

  • Represented contractors who performed work in Iraq in responding to investigation by House of Representatives Oversight & Government Reform Committee.
  • Advised a major defense contractor in forming a joint venture to compete for a large research and development contract with the military.
  • Reached a favorable settlement in a suit we filed in federal court in September 2005 for a subcontractor seeking $40 million from the prime contractor, Eurest Support Services, Ltd. v. KBR Services, Inc. (E.D. Va.).
  • Defended a contractor performing work in Iraq who was threatened with default. We successfully negotiated the recovery of all compensation due under the contract as well as a satisfactory performance rating for future procurements.
  • Handled the sale of a wholly owned subsidiary of a contractor, and advised new owner on compliance with SBA regulations and forming teaming arrangement with other small businesses.
  • Represented a contractor in responding to a Department of Defense Inspector General investigation and DCAA audit.
  • Defended a research and development company that has been sued by a former employee who alleges fraudulent billing practices on government research contracts, U.S. ex rel Mackay v. Touchstone Laboratories Ltd. (S.D. Ohio).
  • Prepared request for equitable adjustment for contractor that was directed to perform out-of-scope work by Corps of Engineers and incurred unanticipated costs on performance-based contract.
 

MORE INFORMATION

Leonard J. Marsico
412.667.7987
lmarsico@mcguirewoods.com