Government Procurement Special Performance Issues

As in the private sector, protection of your IP is critical when you contract or subcontract with the federal government. The rules regarding the protection of IP such as technical data, computer software, and patents in the federal marketplace often are inconsistent with standard commercial licensing practices.

Our attorneys, teaming with our nationally recognized IP practitioners, effectively negotiate with the government about the types of IP eligible for protection and the related procedural requirements to ensure that such property is safeguarded from unauthorized disclosure. We also work with you to ensure maximum protection of your IP by capitalizing on the special rules that apply to “commercial” computer software and technical data. We will also counsel you on the records you must maintain in order to protect the IP rights you are claiming.

When contracts run into difficulty, you have the option of filing a claim. We provide counsel on filing a claim, assist in the preparation of your claims, and can critique claims you have already prepared. Our goal is to ensure that your claim is backed by sound a factual and legal basis for entitlement and damages, and overall presents a persuasive and compelling case for maximum recovery.

When necessary, we can call on our litigation experience to defend or prosecute breach of contract claims before Boards of Contract Appeals and the U.S. Court of Federal Claims.

Most federal contracts and subcontracts incorporate requirements to foster national goals and public policies such as increasing small business participation in the federal marketplace, assisting minority and disadvantaged workers, easing unemployment, or providing preferences to special sources of supply. We also counsel you on compliance with federal regulations governing affirmative action and have a designated sub-group of attorneys within our Labor & Employment Practice with specific experience in employment issues with government contracts and matters before the OFCCP.

We help ensure compliance with these standards by assisting you with any related certification obligations. In addition, we review and evaluate your particular notification and reporting systems and assist you in preparing any applicable subcontracting plans to ensure compliance with these requirements.

Specifically, we:

• Assist in developing socioeconomic plans to include preferences for small and minority-owned businesses
• Advise on compliance with the Davis-Bacon, Service Contract, and Walsh Healy Acts and related federal laws mandating minimum wages on federal projects
• Assist with the reduction or elimination of the burden of special preferences when subcontracting opportunities did not exist, avoiding future potential claims regarding non-compliance
• Conduct analyses concerning whether a client is a covered contractor or subcontractor under Executive Order 11246 and other federal, state, or local laws and regulations
• Advise on compliance with applicable federal regulations regarding Internet applicant and recordkeeping requirements
• Advise clients through numerous Office of Federal Contract Compliance Programs (OFCCP) desk audits and on-site audits as well as wage and hour audits with the U.S. Department of Labor
• Perform salary, compensation, and adverse impact analyses and complete other reports required by OFCCP and other agencies

We regularly provide counsel on the proper accumulation, measurement, allocation, and allowability of costs under their government contracts in accordance with the CAS and FAR cost principles. When the government asserts a claim that a client has failed to comply with CAS, we assist in negotiations with the administrative contracting officer (ACO) and, if necessary, in litigation against the government’s claim in the relevant Board of Contract Appeals or the Court of Federal Claims, as well as with appeals to the Federal Circuit.

Our practice also involves providing you with guidance on complying with the Truth In Negotiations Act (TINA). This includes assessing whether certain information is “cost or pricing data” that must be disclosed and, if so, ensuring that the relevant data is meaningfully disclosed. We also assist you in establishing, critiquing, and managing your TINA education and compliance programs. Finally, as with many other areas of our practice, we litigate against government claims that you may have failed to comply with TINA’s disclosure requirements.

Our transactional attorneys call upon our government contract experience as an integral part of the acquisition due diligence process. Together, we identify and evaluate due diligence issues, advise on the transaction’s impact on existing or future government contracts, and determine if a novation or change-of-name agreement is required. We also are often retained by other law firms to perform due diligence when a business with significant government contracts is being acquired. In performing our due diligence, we ask the right questions to determine the target business’ stability and negotiate the relevant purchase agreements to help alleviate risk.

Unique to government contracts is the government’s right to terminate a contract either for cause (a default termination) or because the government decides it no longer wants or needs the goods or services being acquired (a convenience termination). Default terminations carry strong negative connotations that adversely affect the contractor. While a convenience termination does not carry the stigma of a default, it often precludes the contractor from receiving the “benefit of the bargain,” particularly its anticipated profits.

Default terminations can be challenged and, if successful, converted to a convenience termination. We have extensive experience in negotiating terms to mitigate the negative impact of a termination, where possible.

Possessing a wealth of experience in the contract dispute tribunals — the contract appeals boards, the U.S. Court of Federal Claims, and the U.S. Court of Appeals for the Federal Circuit — we litigate your claims against the government and defend you against government claims. We have participated in some of these tribunals’ most complex cases, many involving hundreds of millions of dollars. Several of our attorneys have served in leadership positions in the bars of both courts, on special court-appointed task-forces dealing with court rules, issues and changes, and on the Claims Court Advisory Council consisting of judges and members of the private and government bar.

We recognize that thorough pre-litigation planning and preparation is essential to a successful resolution, either through settlement or by judicial decision. Additionally, recognizing the expense of a trial, we seek creative alternative dispute resolution mechanisms and encourage settlement negotiations.