GOVERNMENT CONTRACTS

Entering a contract with a governmental entity or agency carries risks as well as rewards. The laws and regulations governing government contracts are unique and vary greatly from the laws applicable to commercial sales. Thoroughly understanding the complexities associated with contracting with the government; the differences from commercial contracting; and the risks, responsibilities, and options presented by these contracts is vital to the success of the underlying relationships.

Nixon Peabody’s Government Contracts team works closely with companies of all sizes to help them take advantage of the opportunities associated with federal, state, and local government contracts, while assuring that they also understand the risks, obligations, and larger business issues associated with them.

Our lawyers have handled multibillion-dollar transactions and litigation with the U.S., state, and municipal governments, and have also helped small and mid-size companies enter the federal procurement marketplace. We have represented clients in negotiation, counseling, litigation, and other proceedings before:

• Local courts
• Agency boards of contract appeals
• The U.S. Government Accountability Office
• Various federal district courts
• The U.S. Court of Federal Claims
• The U.S. Court of Appeals for the Federal Circuit

Our team’s services extend to related areas, such as:

• Dispute resolution and litigation
• Corporate and regulatory compliance
• Internal investigations
• Labor, employment, safety, and wage/hour compliance
• Mergers and acquisitions involving government contractors
• Drafting and negotiating contracts
• Defense of whistle-blower claims
• Suspension and debarment
• Americans with Disabilities Act (ADA) and accessibility issues, generally

We also have substantial experience assisting companies that provide—or seek to provide—products and services to the U.S. Departments of Defense and Homeland Security. We have helped clients take advantage of opportunities afforded by the Homeland Security and SAFETY Acts, and aided them in developing policies and procedures to ensure compliance with the U.S.A. Patriot Act.

Our lawyers have analyzed, developed, negotiated and, when necessary, litigated claims against the government. We are skilled at protecting our clients’ intellectual property and proprietary information in this context.

Government contracting experience

Contract formation and negotiation: The first steps of any government contract are submitting the bid for the contract and dealing with the forms, terms, and clauses of the contract. We have advised both bidders and government agencies with respect to the bidding process. Examples of our experience in this area include the following:

• We have helped government agencies to overhaul their bidding process, establishing rules and procedures for drafting requests for proposal, responding to questions from potential bidders, and developing a framework for evaluating bids and selecting the winning proposal.
• We have also advised bidders concerning the bidding process and assisted in drafting proposals. We have assisted successful bidders in finalizing the terms of government contracts and subcontracts, including advising them on establishing procedures and structures to satisfy compliance obligations.
• We advise both contractors and subcontractors concerning aspects of government contract law that may impact their business arrangements in unexpected ways. This includes advising them on aspects of the Assignment of Claims Act, which may affect their financing arrangements, and on “flow-through” obligations, which may impose a wide variety of federal labor, environmental, and anti-discrimination rules and other requirements on subcontractors in the federal contracting arena.

Protests and claims: We have defended and challenged contract awards before federal agencies, at the General Accountability Office, in the Court of Federal Claims, and in state agencies and courts involving a full range of protest issues, including improper sole source decisions, IDIQ evaluations, small business size determinations, and HUBZone protests. Examples of our experience in this area include the following:

• Successfully appealed an adverse decision of the Small Business Administration to sustain a HUBZone protest against our client, securing our client’s multi-million dollar contract award.
• Successfully represented master real estate developer of Ballpark District in litigation relating to real estate development rights surrounding new baseball stadium in Washington, D.C., Monument Realty, Inc. v. Washington Metropolitan Area Transit Authority, 535 F.Supp. 2d 60 (D.D.C. 2008), 540 F.Supp. 2d 66 (D.D.C. 2008).

Litigation: We have significant experience with litigation concerning every aspect of government contracts. Examples of our experience in this area include the following:

• Successfully represented Signature Flight Support Corporation in a multimillion dollar ground sublease dispute involving a Signature sublessee, Landow Aviation and Metropolitan Washington Airports Authority, at the Washington Dulles International Airport, Signature Flight Support Corporation v. Landow Aviation Limited Partnership, Case No. 1:08cv955, 2010 U.S. Dist. LEXIS 24877 (E.D. Va. March 17, 2010) obtaining declaratory judgment and permanent injunction, affecting general aviation rights at Washington’s Dulles Airport for the next 25 years, and recovering substantial attorney’s fees.
• Representation of a federal grant applicant who was denied grant payments under Section 1603 of the American Recovery and Reinvestment Act. In a case of first impression, we filed suit under the Tucker Act in the Court of Federal Claims alleging that the United States’ Department of the Treasury wrongfully denied the grant payments.
• In multiple cases, we represent a group of owners who seek contractual damages arising from federal legislation and the United States Housing and Urban Development rules that breached the rent adjustment provisions of the owners’ Section 8 housing assistance payments contracts. In one of these cases, the court has confirmed that the government breached the contracts and parties are attempting to determine damages.
• We represent a nationwide group of owners of multifamily housing who are suing the U.S. government for a taking that occurred when they were prohibited from prepaying their HUD-insured mortgage loans, in violation of the terms of the loan documents.
• Representation of a German contractor in a dispute against the Defense Department concerning a construction contract at a U.S. military base in Germany.
• Representation of a large construction company awarded a multi-million dollar state government construction contract. Providing legal guidance on project management and claims preparation in anticipation of litigation against the state agency based upon the awarded government contract.

Investigations and qui tam litigation: We have handled many cases and investigations involving allegations of wrongdoing. Examples of our experience in this area include the following:

• Representation of a public company concerning a contract with the United States in which it sold technology to assist the Department of Homeland Security. Representation of the company in connection with an investigation involving allegations of potential false claims, false statements, and fraud. This matter also involves a whistleblower, who is most likely working with the government. To date, we have assisted in discussions with the Department of Justice and Department of Homeland Security, and with responding to multiple administrative subpoenas that have required a massive electronic discovery undertaking.
• Representation of a contractor that provided services to assist in military operations in Southwest Asia that is currently under investigation with allegations concerning fraud, false certifications, and billing issues. This matter has also involved subpoenas and discussions with the Department of Justice (concerning both criminal and civil components).
• Successfully obtained dismissal of a qui tam False Claims Act case against client who held a contract with the United States Army at the Tobyhanna Army Depot. An employee who worked at the Depot alleged that his termination was in retaliation for raising FCA concerns. We filed a detailed motion to dismiss and were able to obtain dismissal prior to any discovery in the matter.

Mergers and acquisitions: We work seamlessly with our mergers and acquisitions team in conducting due diligence reviews of government contracts, assisting companies in navigating export control laws, and counseling clients acquiring government contractor entities. Examples of our experience in this area include the following:

• We have supported European aerospace and defense companies in connection with acquisitions in the following industries and industry sectors: commercial satellite payload designer and manufacturer, satellite launcher designer and manufacturer, commercial and military aircraft maintenance services, geospatial satellite services, aircraft instrument maintenance services, military aircraft overhaul and customization, security network equipment and services, general Department of Defense services contracting, military ship design, and secured network systems.
• We have worked with an industry-leading French company in its multi-stage acquisition of a U.S.-based chemicals company serving nuclear and other energy-related sectors.

Specialty advice (e.g., CAS compliance): We have extensive experience in assisting contractors with compliance issues. We have conducted compliance reviews and designed compliance policy and training programs on various topics including cost and pricing data; ethical requirements; FAR-required codes; labor, employment, safety, and wage/hour compliance; and mandatory disclosure obligations. As a recent example, we devised a compliance program and provided accompanying training on the above topics for a subcontractor that provides parts for use by the United States military.