Federal, state, and local governments are among the largest purchasers of goods and services domestically and around the globe. Contractors seeking to satisfy this demand face intense competition, complex regulations, and heightened scrutiny regardless of size or industry. Kilpatrick Townsend has the experience and knowledge to allow clients to navigate the maze of laws, regulations, and contract provisions related to government contracts in order to ensure compliance while also meeting clients’ business objectives and preserving their rights. The firm’s comprehensive Government Contracting practice offers advice and representation related to the full spectrum of government contracts issued by almost all federal agencies. Our experience ranges from reviewing and advising on the terms of solicitations, bringing and defending bid protests, prosecuting contract disputes, internal and government investigations, regulatory compliance, suspension and debarment, transactional issues, and unique government contracting intellectual property matters. Our attorneys have focused on the legal intricacies of government contracting for decades and seen the process from inside the U.S. Government, enabling them to provide strategic and tailored counsel.

With Washington, D.C. as the hub of our government contracts practice, our experience encompasses matters involving virtually all major federal agencies, and the legislative and judicial branches. Our attorneys also have experience with state, local, and international procurements. On the international front, we have handled projects on six continents. Our clients include contractors, municipalities, and heavily-regulated, private businesses. Our experience covers a broad range of industries, including construction and infrastructure, aerospace, defense, healthcare, IT, environmental, process and manufacturing, energy, and real estate. In addition, we have represented nongovernmental organizations (NGOs) in all aspects of government contracts across the country and around the globe.

Contract Formation & Administration

Navigating a government solicitation is no easy task. There is confusing verbiage and scores of regulations are included and binding based on mere references. We demystify the process and help clients at all stages—from those just starting out in government contracting to those facing complex disputes.

For example, at the contract formation and administration stages, we:

  • Review and analyze solicitations and applicable regulations so that we can explain to clients about their obligations under particular contracts;
  • Assist contractors of all sizes and throughout all industries with tailoring and updating their internal controls and ethics and compliance programs to satisfy government contracting obligations; and
  • Defend contractors against allegations of poor performance by responding to cure notices and terminations for default.

Our experience goes beyond the surface and includes handling focused issues including those faced by small businesses participating in Small Business Administration programs. This includes size status protests, advising clients on the 8(a), WOSB, HUBZone, and SDVO SBC programs, and mentor-protégé programs.

Contract Formation & Administration Representative Matters

  • Served as co-lead project counsel to the M&O contractor on a national laboratory site involving a $850 million development, design, and construction project.
  • Advised a leading healthcare organization on upgrading multiple compliance program elements to satisfy FAR and HHSAR contracting requirements.
  • Providing legal advice and preparing documentation necessary for a construction industry company to form a Small Business Administration (SBA) 8(a) Mentor-Protégé arrangement.
  • Advised client in, and lead efforts in, FAR-compliance issues including novations for a security contractor.
  • Represented provider and M&O contractor for mobile morale, welfare and recreation (MWR) internet café services to U.S. troops in Iraq during Operation Iraqi Freedom under SPAWAR contract and in dispute with subcontractor.
  • Represented client in the installation and operation/maintenance of cellular tower services in Afghanistan.

Bid Protest

With dollar amounts ranging from hundreds of thousands to billions of dollars routinely at stake in government contracts, competition is fierce. All contractors will eventually find themselves in a situation where they will either need to bring or defend against a bid protest. Kilpatrick Townsend’s attorneys have handled bid protests for contractors in all industries before the Government Accountability Office and the Court of Federal Claims. Our experience includes:

  • Helping contractors prepare for written and oral debriefings;
  • Evaluating debriefings and circumstances surrounding an award to advise on whether there are viable protest grounds; and
  • Representing contractors in the protest process from beginning to end including agency record disputes, filing supplemental protests, and participating in hearings.

We also represent those parties that are award winners—intervenors—where the award to them is protested by other, disappointed offerors or bidders. In this role, we work with agency counsel to help protect the award. Our team has represented clients in dozens of intervenor actions.

Bid Protest Representative Matters

  • Successfully represented a U.S. electronics and air traffic controls contractor in an award protest regarding the approximately $200 million Federal Aviation Administration (FAA) acquisition of Airport Surveillance Detection Equipment Systems (ASDE-X).
  • Successfully represented the incumbent on a multiyear, multiport/country husbanding services contract for the U.S. Navy against three protesters. Assisted the government with all aspects of the protest and filings; filed comments in opposition to the protest.
  • Successfully resolved a bid protest before the U.S. Government Accountability Office (GAO) on behalf of a client providing communications services in Iraq.
  • Successfully represented intervenor in bid protest on U.S. Government Overseas Building Operations. The protest was filed at the GAO by a disappointed offeror on a $85 million contract awarded to client for warehouse, chiller plant, emergency back-up building systems for U.S. Embassy, Baghdad, Iraq. Decision sustaining award to client issued.
  • Represented Mentor-Protégé Client JV in bid protest at GAO, following successfully winning agency-level protest on improper exclusion of client from award due to Mentor-Protégé-related issues.

Contract Disputes & Claims

We represent clients in government contract disputes involving a broad range of claims, including delay, impact, loss of productivity, defective design, and changed site conditions, among others. Our litigators have handled trials and appeals in the state and federal courts, matters before the Boards of Contract Appeals, the Court of Federal Claims, various government agencies, and the FAA Office of Dispute Resolution. The team also works with clients to resolve disputes without the need for litigation and is highly experienced in various forms of ADR, including arbitration and mediation. We have also represented clients in numerous local and state government contract disputes across the country.

Contract Disputes & Claims Representative Matters

  • Representing SDVOSBC Prime Contractor and teaming partner subcontractor in series of multiple appeals of improper terminations for default and also affirmative recovery claims involving the Veterans Hospital in Northport, New York.
  • Representation of prime contractor in disputes and issues with Owner of the U.S. Embassy in Wellington, New Zealand, the U.S. Department of State Overseas Building Office. Matter deals with defective design, changed and differing site conditions, delays, immigration and visa issues, and improper oversight and interference by OBO personnel.
  • Draft and prepare multi-million dollar differing site conditions claim arising out of excessive quantities of soil that was to be removed and processed to remove chemicals, debris, and heavy metals from ammo dump facility owned by U.S. Army. Claim included delay, impact, and additional cost of processing deeper and additional quantities of materials. Resulted in significant settlement/resolution.
  • Represent mechanical subcontractor and its team in on-going delay, inefficiency, and related contract claims involving renovation of Smithsonian Institution Project as well as Miller Act and breach of contract litigation. Resulted in successful settlement of portion of claims and pass through of remaining claims to owner. Co-counsel to Appellant’s counsel in a three-week hearing before Board in November 2015 on the pass-through claims, and following an intense three-week trial and post-hearing briefings, the Civilian Board of Contract Appeals sustained the claims as part of an award of over $5.5 million plus interest and the board’s complete rejection of the Smithsonian’s counterclaim of more than $24 million.
  • Represented roofing prime contractor in dispute with Naval Facilities Command under IDIQ contract, wherein local activity required specialized work and warranties not required by base IDIQ contract. Case resulted in our preparing and prosecuting claim as well as taking appeal to hearing at ASBCA. Following hearing and briefing, ASBCA ruling is pending.
  • Successfully representing an engineering and construction management company in connection with a tank firing range under a U.S. Army Corps of Engineers' prime contract in Kuwait. We resolved approximately $5 million in claims involving defective specifications, differing site conditions, constructive changes, and compensable delays.
  • Representing a subcontractor in a breach of contract suit against a prime contractor for concrete restoration on renovation and modernization of the major federal courthouse in Washington, D.C. 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 more than $1.28 million (including retention). We settled a portion of the claims with the prime contractor and are now working with the prime contractor on pass-through claims.
  • Successfully represented SDVOSBC prime contractor in claims and appeals involving improper termination for default and seeking affirmative recovery for delay, impact, and changed conditions. Following preparing and submitting claims and appeals, performed full document discovery, which resulted in highly successful settlement following a two-day mediation.
  • Representing a design/build contractor in connection with differing site conditions and a geotechnical case involving delay, impact, and loss of productivity arising from a defective and incomplete geotechnical report provided by the U.S. Naval Facilities Command (NAVFAC) for a child development center project at the Marine Corps base at Quantico.
  • Represented a national general contractor in multimillion dollar dispute against a local hospital. The case involved significant delays and disruptions, owner directed change orders, and improper coordination with the architects.
  • Representation of client in various aspects of government cooperative agreement with U.S. Agency for international development. Case involved over $50 million in termination for convenience claims (including delay, impact, wartime attacks, geotechnical issues, differing site conditions, and other aspects) on Strategic Provincial Roads in Southern and Eastern Afghanistan (SPR-SEA) under USAID Cooperative Agreement. Unique claims aspects included extensive security issues (relating to al Qaeda and Taliban attacks), negotiations of subcontract termination claims, review of claims, and advising clients. Overall value of agreement was originally approximately $460 million. Case settled at very high rate of recovery through Agreement Claims Procedure.
  • Represented prime contractor of U.S. Government in project involving U.S. Embassy Housing Campus in Lagos, Nigeria, and claims involving differing site conditions, changed conditions, and delays. Resulted in successful resolution of dispute and receipt of change order remitting payment for costs incurred and a significant time extension.
  • Representation of American general contracting client on U.S. Department of State Overseas Building Operations contract involving design-build of temporary new office building and related facilities in Southeast Asia. Prepared and oversaw development of claims associated with U.S. Embassy Project, including claims associated with delay, impact, differing site conditions, defective agency-provided specs, and drawings. Also represented client in refuting Show Cause Letters in Agency’s effort to terminate client for default and managed to get client terminated for convenience, resulting in $5 million+ in close-out claim.
  • Represented clients in AAA International Center for Dispute Resolution (“ICDR”) Arbitration involving delay and breach of contract claims, as well as reprocurement and termination-related costs associated with U.S. Embassy in Mexico City and U.S. Consulate in Monterrey, Mexico.
  • Represented Prime Contractor against Electrical Subcontractor in counterclaim and defended against sub’s affirmative claim. Successfully resolved prior to hearing. Case value was approx. $1.5 million.

Internal Investigations

Federal regulations contain specific requirements for performance, pricing, cost accounting, business practices, and other ethical and compliance issues. In an environment of increased enforcement by the Department of Justice and Offices of Inspectors Generals, contractors need careful advice on how to comply with these rules and procedures in order to avoid liability under the False Claims Act and other federal laws and regulations. Even if the government opts not to launch an investigation, private whistleblowers may bring qui tam lawsuits against companies performing work for the government. Our Government Contracting team has experience in defending clients against various allegations of fraud and ethics violations. We also help proactively by providing ethics trainings as well as compliance and risk analyses for clients. Our defense experience includes:

  • False Claims Act actions
  • Qui tam actions
  • Grand jury proceedings
  • Government audits and procurement fraud investigations
  • Government bribery allegations
  • SBA-related protests and inquiries
  • Davis-Bacon and Service Contract Act violations and investigations
  • U.S. Attorney and Inspector General investigations and court actions
  • Representing contractors in suspension and debarment proceedings across various agencies including the U.S. Air Force, U.S. Army, Environmental Protection Agency (EPA), and the General Services Administration (GSA).

Internal Investigations Representative Matters

  • Representing government contractor accused of defective pricing violations by the United States Department of Justice in a False Claims Act case in the Eastern District of Virginia.
  • Performed internal investigation and issued report relating to Native American owned small business concern and issues relating to control and related aspects of small business government contracts.
  • Advising contractors with GSA Schedule contracts on complying with the price reduction clause and representing them in investigations by GSA OIG in alleged violation.
  • Conducted an internal investigation at a leading aerospace parts manufacturer to identify the root causes of specification non-compliances.
  • Successfully achieved the revocation of a debarment show cause notice to a leading Fortune 500 healthcare government contractor. Also successfully represented a number of the contractor’s subsidiaries that had been proposed for debarment.
  • Negotiated an administrative agreement in response to a proposed debarment by the EPA on behalf of a manager in a case involving a Clean Water Act violation.

Transactional

Transactions involving government contractors raise a number of issues that do not exist in “commercial” deals. For example, parties in such a deal need to consider how and even if contracts can be novated over, whether national security concerns may lead regulators to block the deal, or whether the due diligence process has truly identified the risks in a deal. Kilpatrick Townsend’s Government Contracting attorneys regularly work with their corporate counterparts to ensure deals involving government contractors close smoothly.

Transactional Representative Matters

  • Represented service-disabled veteran in a stock acquisition of a security contractor. This transaction involved careful structuring of the deal to address all SBA requirements.
  • Represented several clients in mergers and acquisitions due diligence and novation obligations under the FAR relating to government contracts issues.
  • Represented a government contracts healthcare consulting firm in its acquisition of another government contracts healthcare consulting firm.
  • Performing specialized due diligence for Fortune 100 government contractors in acquisition of smaller targets. Our reviews identified unique IP, security, and compliance issues that protected the purchasers.

Cybersecurity

Government agencies are working hard to safeguard data from the increasing threat of cyber attacks. These efforts have resulted in complex cybersecurity requirements for government contractors. We regularly advise government contractors on the handling and safeguarding of government-protected data, and we counsel clients on the reporting and investigation of cyber incidents. We assist our clients with the development of security plans for software operating on networks and in the cloud. In addition, we have helped our clients to develop policies and procedures to address data security, national and international privacy, records retention, and consumer protection issues that may arise in government contracts matters. The scope of our services includes:

  • Review of technology vendor agreements for cybersecurity compliance issues
  • Reviews of enterprise-wide or specific contracts for compliance with various standards (e.g. NIST, FIPS, FedRamp, DoD, and other agency-specific standards)
  • Advice regarding minimum cybersecurity requirements for premises-based, network-based, and cloud-based solutions
  • Cybersecurity compliance training
  • Internal audits and investigations
  • Government audits and investigations
  • Breach response, management, and reporting
  • Claims

State & Local Government

State and local government contracting raises unique issues that experienced practitioners can help entities navigate. In addition to their extensive federal government contracting experience, our attorneys have counseled clients in a number of state and local matters across the United States.

State & Local Government Representative Matters

  • Representing a joint venture of two of the largest civil works contractors in North America on a $350 million highway and bridge design-build project near Seattle for the Washington State Department of Transportation. The matter involves disputes arising from complex and interrelated geotechnical and design issues that equate to tens of millions of dollars in additional design and construction costs and months of delay. We recently supported the client in the presentation of the dispute to the project dispute review board and received a favorable decision from the board. We continue to advise the client on other pending project and closeout issues.
  • Developed the contract documents for the Narragansett Bay Commission’s deep tunnel and combined sewer overflow program to control and treat wastewater flows into the Providence River and Narragansett Bay. We developed the custom contract documents “from the ground up” for use in lump-sum public bidding of approximately $500 million in construction. Our early involvement and steady advice during the project helped deliver the project without any claims going to the DRB, within budget and on schedule.
  • Represented a Florida construction company, specializing in contracting and construction management services, in their proposal on the Port of Miami Tunnel Project. This project involved a 30-year concession pursuant to which the concessionaire will design, build, operate, maintain, and finance two parallel 3,900 foot tunnels beneath the Port of Miami. We addressed all design and construction issues during the bid process. The engagement involved extensive review and analysis of contract documents proposed by the Florida Department of Transportation and meetings among the team members and with FDOT regarding proposed changes to the legal, commercial, and technical terms.
  • Represented transportation services company in review and response to RFPs issued at local (city) and country levels in a number of jurisdictions across the country.
  • Serving as Project Counsel to the Joint Project Office of the Jasper Ocean Terminal, a proposed multibillion dollar state-of-the-art marine cargo terminal on the Savannah River in Jasper County, South Carolina. This project is a cooperative development between the states of South Carolina and Georgia involving their respective Port Authorities and Transportation Departments. Our representation relates to all aspects of the planning, evaluation of financing alternatives, design, development, and construction of the facility. Activities include preliminary terminal planning, analysis of private finance opportunities, preparing for the permitting process, dredge material management, and infrastructure planning for transportation links (road/rail) and utilities.
  • Project litigation counsel to the Orlando Community Construction Corporation “OC3”, a consortium of the City of Orlando, Orange County, Florida and the Dr. Phillips Foundation, for the development, construction and resolution of disputes on the $250 million multi-phase project to construct the Dr. Phillips Performance Arts Center of Orlando. Following a contentious claims and changes process, managed to settle all disputes and get project to substantial completion on time following claims of pervasive delays.
  • Represented the City of Atlanta on multiple projects related to the Hartsfield-Jackson Atlanta International Airport:
    • The design, procurement, and construction of a $1.2 billion international terminal constructed by a Construction Manager at Risk;
    • Replacement of the security access control system at the airport;
    • A design-build project to replace the parking revenue control system, including procuring a contractor to develop the necessary software, integrate the software with the equipment and install the equipment, drafting a contract for the project, and advising client on the claims related to installation of the project;
    • The design, building, and operation of an approximately $200 million dollar elevated light rail automated people mover connecting Hartsfield-Jackson Atlanta International Airport with its consolidated rental car agency complex. Representation also included providing contracts, day-to-day advice on claims avoidance and mitigation, claims analysis and negotiation, and contract administration issues related to the light rail; and
    • The design and construction of a $250 million facility for Hartsfield-Jackson Atlanta International Airport, including contract preparation, procurement of a Construction Manager at Risk, representing the City of Atlanta in matters related to the implementation of value engineering, and negotiating Component Guaranteed Maximum Price Change Orders for the project that were then rolled into a Guaranteed Maximum Price Change Order. The firm also provided day-to-day advice on claims avoidance and mitigation, and contract administration issues.

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