Government Procurement Compliance & Training

We pride ourselves on providing cost-effective legal counsel to federal government prime contractors and subcontractors, even in the most complicated circumstances, with a solutions-oriented focus on minimizing risk and avoiding costly and lengthy disputes. Our breadth of knowledge and deep bench of both transactional and litigation attorneys across the many practice areas that impact government contractors allow us to take a multi-disciplinary and holistic approach to these complex legal matters.

Our team’s depth of experience assists clients in every area of federal government contracts, including:

Litigation Matters

• Bid Protests. Our team represents government contractors—whether as the protester or intervenor awardee—in procurement protests before the agency, the Government Accountability Office (GAO), the U.S. Court of Federal Claims (COFC), the U.S. Court of Appeals for the Federal Circuit, and other alternative procurement dispute resolution processes (g., the United States Postal Services’ Supplier Disagreement Resolution Official). We also represent clients in size or status protests filed with the U.S. Small Business Administration (SBA), including appeals to the SBA’s Office of Hearings and Appeals (OHA).
• Claims and Disputes. During performance of government contracts and subcontracts, disputes inevitably arise, and the unique rules and contract clauses applicable to work performed for the federal government can present legal issues not present under commercial contracts. Our team represents contractors in analyzing and preparing requests for equitable adjustment and claims, including those related to government-directed changes, government-caused delays, terminations for convenience, and stop-work orders. If the claim cannot be resolved directly with the contracting agency, we represent clients in pursuing their claims before the Civilian and Armed Service Boards of Contract Appeals, the U.S. Court of Federal Claims, and the U.S. Court of Appeals for the Federal Circuit. We have extensive experience litigating monetary claims against the United States under the Tucker Act in the U.S. Court of Federal Claims, including contract claims, claims arising from a money-mandating source of law, illegal exaction claims, and Fifth Amendment takings claims arising under the U.S. Constitution.
• Internal and External Audits and Investigations. Our team, in collaboration with Foley’s Chambers-recognized Government Enforcement Defense & Investigations (GEDI) team, advises and represents government contractors in conducting internal audits and investigations and responding to government audits and investigations, involving allegations of violations of the civil False Claims Act, including qui tam actions; the False Statements Act and other criminal fraud laws; the Procurement Integrity Act; and the Foreign Corrupt Practices Act (FCPA). We assist clients in producing documents and information in response to civil and criminal subpoenas and investigations, including investigations led by the Department of Justice or Office of Inspector General (IG). We also advise clients on the FAR mandatory disclosure requirements and related responsibility matters and assist in preparing initial and supplemental IG disclosures.
• Suspension and Debarment. Suspension and debarment from federal contracts and grants can have drastic consequences for contractors whose business depends on access to participation in federal contracts, subcontracts, and grants. We have successfully represented clients in responding to suspension and debarment notices, working to demonstrate to the relevant agency suspension and debarring official that the suspension or proposed debarment is unwarranted.  When warranted, we assist companies in negotiating Administrative Compliance Agreements that permit companies to continue to conduct business with the federal government.

Transactional Matters

• Drafting and Negotiating Subcontract Terms and Conditions. We assist higher-tier contractors in preparing necessary FAR and FAR agency supplemental flowdowns. We also help both higher-tier and lower-tier contractors review, revise and negotiate subcontract and purchase order terms and conditions.
• Grants and Cooperative Agreements. Our team advises contractors on the compliance requirements under 2 CFR Part 200 (the Uniform Guidance) and other supplementary regulations implemented by various departments and agencies that govern federal grants and cooperative agreements. We assist clients in reviewing and negotiating special terms and conditions as well as preparing prepare subawards and contracts that include required flowdowns. We also assist clients in developing policies, procedures and compliance programs to ensure compliance with the rigorous administrative and regulatory requirements that come with receiving federal funding under financial assistance agreements.
• Other Transaction Agreements (OTAs). Over the last decade, the federal government has increasingly taken advantage of its Other Transaction authority to issue OTAs. Because OTAs are not subject to the FAR or Uniform Guidance, each one requires careful review to understand the compliance obligations the government seeks to impose and the rights the government proposes to receive in intellectual property developed, and government property acquired, under an OTA. We have experience reviewing and negotiating OTAs with multiple agencies in a variety of industries.
• Other Types of Agreements. We represent clients in drafting, negotiating and enforcing non-disclosure agreements (NDAs) and teaming agreements, including GSA Schedule Contractor Teaming Agreements (CTAs).
• Mergers and Acquisitions (M&A). Our group advises clients on both buy-side and sell-side deals on the full range of issues a company may encounter in an M&A deal, including conducting in-depth due diligence; identifying material risks or non-compliances; drafting and negotiating representations and warranties; preparing disclosure schedules; preparing change of ownership and size rerepresentation notices; and preparing change-of-name and novation packages. We also advise companies on the potential impact of an acquisition that leads to foreign ownership, control or influence (FOCI), by preparing facility security clearance changed condition packages and negotiating FOCI mitigation agreements. When an acquisition will lead to FOCI, we also work with our International Trade and National Security team members to obtain necessary approvals from the Committee for Foreign Investment in the United States (CFIUS) and submit other required notices to regulatory agencies, including required notices to the Directorate of Defense Trade Controls (DDTC).

Special Performance Issues

• Domestic Sourcing Requirements: Domestic content requirements are a critical—and often complex—aspect of federal government contracting and regularly appear in government contracts, particularly DoD contracts and subcontracts and contracts or subcontracts issued under federally funded infrastructure projects. For federal contracts and subcontracts, these array of domestic sourcing restrictions include the Buy American Act (BAA); the Trade Agreements Act; the Berry Amendment and Kissell Amendment, governing purchase of certain commodities by DoD and the Department of Homeland Security; and DoD-specific restrictions on the sourcing of so-called “specialty metals.” When performing contracts or subcontracts under federally funded infrastructure projects, contractors face domestic sourcing and content requirements under a complex set of rules that often vary based on the source of the federal funding, including the Build America, Buy America Act (BABA) and certain agency-specific “Buy America” or “Buy American” requirements applicable to U.S. Department of Transportation components, such as the Federal Transit Administration, Federal Highway Administration, Federal Railroad Administration/Amtrak, and the Federal Aviation Administration.  Foley assists clients in developing strategies for ensuring compliance with these domestic content and related foreign acquisition requirements, including advising on how best to structure supply chain and procurement practices to ensure compliance; conducting due diligence to ensure the submission of accurate certifications to government agencies or higher-tier customers, including the calculation of domestic content percentages; and responding to government audits and investigations relating to these domestic sourcing requirements.
• Truthful Cost or Pricing Data: Foley provides guidance on complying with the Truthful Cost or Pricing Data Act (formerly TINA), which requires contractors to disclose cost or pricing data for negotiated procurements above certain thresholds and certify that such cost or pricing data is current, accurate and complete. To this end, we assist clients with assessing what cost or pricing data must be disclosed and maintaining adequate records of such disclosures. We also help prepare relevant policies and procedures and provide necessary trainings to ensure that the necessary due diligence has been performed prior to signing a Certificate of Current Cost or Pricing Data. Foley also represents contractors in responding to government audits and investigations alleging defective pricing under TINA.
• Cost Accounting Requirements: We regularly provide counsel on the proper allocation and allowability of costs under government contracts in accordance with applicable cost accounting principles, including those in FAR Part 31. We also assist clients in determining whether a prime contract or subcontract is subject to full or modified Cost Accounting Standards (CAS) coverage. When audits arise, including DCAA audits, we assist clients in preparing for such audits, responding to unfavorable audit findings, and negotiating resolutions with contracting officers.
• Supply Chain Security: Increasingly the federal government has been imposing additional requirements on contractor’s supply chain security, from protection against counterfeit electronic components to prohibiting the use or incorporation of certain types of products or components manufactured in foreign countries of concern, including China and Russia. These supply chain security requirements extend to the use of applications developed by ByteDance (such as TikTok), covered telecommunications and video surveillance equipment and services, hardware, software and services developed or provided by Kaspersky Lab, and products or services covered by Federal Acquisition Supply Chain Security Act (FASCSA) Orders. Implementing policies and procedures to ensure compliance with these supply chain security requirements are critical to avoid expensive disputes, audits, investigations and potential enforcement penalties.
• S. General Services Administration (GSA) Multiple Award Schedule (MAS) Contracts: The GSA Schedule program consists of millions of products and services, provided by thousands of vendors. As all federal agencies and other authorized entities and organizations may acquire products and services from the GSA Schedule, these contract vehicles provide a platform for contractors to market and sell products to the federal government. We provide a multitude of GSA Schedule contracting services, from pre-proposal submission to post-award performance, including, explaining the requirements and limitations of GSA contracting; providing current, accurate and complete commercial sales practices information; and supporting post-award contract compliance with the price reduction clause or transactional data reporting, as applicable, the Trade Agreements Act, and industrial funding fee reporting and payment.
• Commercial Products and Commercial Services: The expansion of the commercial products and commercial services definition and the requirement that the government acquire commercial products and commercial services whenever possible has presented new government procurement opportunities. Contracts and subcontracts for commercial products and services are streamlined, more closely resembling non-government contracts. We counsel clients on the best ways to take advantage of commercial products and commercial services contracting to minimize risk and save money. We help both buyers and sellers shape their contracts to address all risks and requirements, including preparing standard purchase orders to be used for all acquisitions or specialized documents for a particular contract.

Compliance Matters

• Code of Business Ethics and Conduct and Compliance Programs and Policies. Our team works with government contractors to develop, revise and tailor their Code of Business Ethics and Conduct and implement compliance programs, including preparing written policies and procedures and providing training on ethics and compliance issues. Because there is no “one size fits all” approach to compliance, we prepare compliance programs that are tailored to each client’s specific needs while at the same time leveraging prior work product and experience to increase efficiency.
• Small Business Matters. We represent clients in size protests before the Small Business Administration (SBA) and related appeals before the SBA Office of Hearings and Appeals (OHA). We also advise clients on navigating the various size and socioeconomic status requirements and affiliation rules, including with respect to 8(a) small businesses, service-disabled veteran-owned small businesses (SDVOSBs), veteran-owned small businesses (VOSBs), women-owned small businesses (WOSBs), small disadvantaged businesses (SDBs), and historically underutilized business zone small businesses (HUBZone SBs). We also advise clients on the impact of mergers and acquisitions on their continued eligibility status as a small business concern or a specific type of small business, taking into account their new affiliation with their acquirers. In addition, we counsel clients on eligibility requirements under Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) Phase I and II contracts and grants. We work with large businesses to prepare small business subcontracting plans, including individual and commercial plans, and to establish mechanisms to ensure accurate small business subcontract reporting. We also work with small businesses to understand their compliance obligations under the limitations on subcontracting clause in contracts awarded as a small business set-aside.
• Intellectual Property, Including Technical Data, Computer Software, and Subject Inventions. Combined with Foley’s Intellectual Property team, Foley assists clients to prepare strategies to protect their rights in intellectual property (IP), including both background IP developed at purely private expense and IP developed under federally funded government contracts, grants, cooperative agreements, OTAs, and cooperative research and development agreements (CRADAs). We offer guidance on completing data rights assertions tables; complying with proper technical data and computer software marking requirements; drafting and negotiating license agreements between prime contractors and subcontractors; and properly identifying and reporting subject inventions under the Bayh-Dole Act. Additionally, we help clients respond to Freedom of Information Act (FOIA) and other related requests to protect clients’ trade secrets, confidential commercial and financial information, and other information that could provide competitors with an unfair competitive advantage.
• Cybersecurity. Working with Foley’s Cybersecurity and Privacy, Security & Information Management (Privacy) team, we provide counsel to government contractors, including Department of Defense contractors, on the cybersecurity requirements applicable to contractors possessing or using government data, including compliance with NIST SP 800-171 and the Cybersecurity Maturity Model Certification (CMMC) requirements. In the event of a cyber incident or non-compliance, we assist contractors to prepare timely and thorough reports and disclosures to appropriate government agencies.
• Facility Clearance, FOCI and Security Clearance Matters. In connection with Foley’s International Trade and National Security team, we counsel government contractors on compliance with the National Industrial Security Program Operating Manual (NISPOM) and timely reporting changed conditions.
• International Procurement and Compliance. We work closely with Foley’s International Trade and National Security team to provide comprehensive legal services regarding international procurements, including guidance on complying with the International Traffic in Arms Regulations (ITAR) and Export Administration Regulations (EAR), the Foreign Corrupt Practices Act (FCPA), and related investigations, tariff and sanctions matters.
• Labor and Employment Issues. In conjunction with members of our Labor & Employment team, we represent government contractors on issues affecting their workforce, including compliance with E-Verify; annual reporting obligations (g., EEO-1 and VETS-4212 reports); the Fair Labor Standards Act (FLSA); and prevailing wage matters under the Service Contract Labor Standard Act (SCA) and Davis-Bacon Act. We also assist clients in preparing requirement affirmative action programs and updating them annually.

Representative Industries and Sectors

We represent government contractors that provide goods and services to the U.S. Government across a wide range of industries and sectors, including:

• Information Technology and Telecommunications
• Cloud Computing/Storage
• Computer Software and Technology
• Cybersecurity
• Professional Services
• Architect/Engineering Services
• Healthcare
• Energy
• Aerospace
• Defense
• Facilities and Maintenance
• Manufacturing and Distribution
• Maritime and Shipbuilding
• Environmental Services
• Transportation
• Construction
• Institutions of Higher Education, Nonprofit Organizations, Other Grant Recipients and Subrecipients