|
|
|
 |
|
Overview
The V&E; Government and International Procurement Practice represents clients on all aspects of federal, state and local government procurement and grant law. In addition, the practice has a well-recognized expertise in international procurement matters, including export controls, and in the privatization of government activities. As described below, V&E;’s expertise includes routine counseling, complex litigation, claims preparation, investigations, voluntary disclosures and various issues affecting international business dealings. We work closely with lawyers in other practice areas including those in the corporate, healthcare, antitrust, white collar, environmental and international trade groups.
Counseling
V&E; Government and International Procurement lawyers counsel clients throughout the contract negotiation and contract award process, contract performance and post-performance periods. Representative issues include contract requirements related to various labor statutes such as the Davis-Bacon Act (DBA), Service Contract Act (SCA), Contract Work Hour and Safety Standards Act (CWHSSA), and the Walsh-Healey Act; pre-award and post-award issues arising under the Buy American Act; the requirements of the Truth in Negotiations Act (TINA); submission of unsolicited proposals and sole-source awards; various bid and proposal requirements; disclosures under the Freedom of Information Act (FOIA) and reverse-FOIA actions; technology transfers; teaming arrangements/joint ventures; and issues affecting small and/or disadvantaged businesses, including issues involving the Small Business Act (SBA). We also advise clients regarding the unique restrictions affecting government contractors in the areas of lobbying, market intelligence, use of consultants and commission agents, and the potential conflicts of interest that may arise in hiring former government employees.
Representative matters we and other members of the firm have handled include the following:- Assisting a large financial corporation in all aspects of preparing a proposal for a multi-billion dollar student loan program contract with the Department of Education.
- Representing a commercial software vendor in successfully negotiating a license with a Department of Energy management and operations contractor.
- Assisting a large financial corporation in preparing its proposal for a government-wide credit card contract.
- Successfully negotiating and drafting a teaming agreement among four firms for the implementation of the U.S. Army's non-competitive acquisition strategy for the advanced field artillery system and future armored resupply vehicle program.
- Representing various nonprofit organizations, including universities and medical institutions, regarding the interpretation and performance of federal, state and private grants.
- Advising a contractor which developed a software product for the U.S. government on commercializing that product, and drafting domestic and international license agreements for the commercialized product.
- Assisting a number of clients in pursuing and negotiating Federal Supply Schedule (FSS) contracts and the licensing of commercial software to the government.
- Advising clients in establishing effective Buy American Act manufacturing and purchasing processes, as well as assisting clients in waiver requests and voluntary disclosures relating to Buy American Act requirements on U.S. government procurements and grant programs.
- Assisting a number of state political subdivisions in the development and negotiation of contract terms and conditions for the acquisition of public infrastructure, water, sewers and roads.
- Counseling various clients on labor matters affecting government contracts including drafting and updating affirmative action plans, and responding to discrimination allegations.
Compliance and Fraud, Waste and Abuse Matters
Our lawyers are experienced in assisting government contractors in both the development of compliance systems as well as the evaluation of existing systems. When compliance matters arise or a subpoena or search warrant is served, we prepare and implement compliance systems, as well as defend against "fraud, waste and abuse" allegations. V&E; lawyers also handle any resultant criminal investigation by the Inspector General, grand jury proceedings, and any related False Claims Act (FCA) (i.e., civil fraud) and/or Qui Tam defense matters involving relators. V&E; lawyers are also experienced in defending contractors in suspension and debarment proceedings resulting from such allegations, investigations, and convictions.
Representative matters we and other members of the firm have handled include the following: - Conducting ethics compliance audits for a number of the largest aerospace companies pursuant to consent decrees executed with various agency inspector generals and the Department of Justice.
- Successfully handling an investigation, Qui Tam defense, and subsequent suspension proceedings against a contractor arising out of contracts awarded during Desert Storm. As a result of a complaint filed by a Qui Tam relator, the Defense Criminal Investigative Service (DCIS) and FBI, in conjunction with the local U.S. Attorney's office, initiated an investigation of our client. We convinced the U.S. Attorney's office that no criminal charges should be filed, negotiated a favorable civil settlement, and subsequently persuaded the agency that the company should not be suspended or debarred. Because a sale of the company was pending, time was of the essence, and the entire matter was concluded within five months.
- Representing a military contractor indicted for procurement fraud. We successfully negotiated a global resolution of the matter involving a criminal plea, with dismissal of indictments against five company officials, a civil/administrative resolution with the Department of Justice, and the avoidance of a debarment by the U.S. Air Force.
- Representing a contractor providing services to the U.S. Army in various locations under a services contract in a criminal investigation of certain equipment and accounting issues. In less than one year, successfully persuaded the Department of Justice not to bring charges.
- Defending a major U.S. corporation against charges of illegal shipment of goods to Libya. We resolved matter by a global resolution which included a criminal plea, no charges being brought against individuals, and an administrative resolution with the Department of Commerce.
- Representing a contractor who allegedly had knowingly invoiced the government prior to paying its subcontractors in violation of the Federal Acquisition Regulation (FAR). After an extensive Inspector General investigation involving thousands of documents and dozens of contracts, we resolved the matter at the agency level without having the matter referred to the Justice Department.
- Representing a medical equipment dealer and maintenance provider in debarment proceedings before the Department of Veterans Affairs. Debarment was lifted within two months of initial notification.
- Representing a contractor accused of criminal fraud and defective pricing in connection with a multi-billion dollar foreign military sale (FMS) to Saudi Arabia. After an extensive investigation, we settled the matter favorably with no criminal conviction, suspension or debarment.
- Handling a suspension and debarment proceeding for a major aerospace company resulting from environmental violations. Working with EPA’s suspension and debarment office, we negotiated a satisfactory compliance plan that settled EPA’s claims of environmental violations.
- Negotiating a very favorable plea agreement to resolve environmental criminal charges against a company with significant government contracts business. In parallel, we negotiated a compliance agreement with EPA to avoid suspension and debarment.
- Representing a group of individuals in connection with an investigation of a major government contractor by the Department of Justice. The investigation began in 1992 and was completed in 1999. It focused on a broad variety of potential illegalities regarding the company’s use of foreign consultants and alleged false certifications made to the Department of Defense and other governmental agencies. We represented our clients in contacts with the U.S. Attorney’s Office and were also involved in grand jury proceedings in connection with this case. Ultimately none of our clients faced any adverse consequences as a result of this investigation.
Bid Protests, Claims and Disputes
In the event of a dispute in the contract award process, V&E; represents entities in the prosecution or defense of "bid protest" actions in all the cognizant forums, including the contracting agencies, General Accounting Office (GAO), U.S. Court of Federal Claims (COFC), the Federal District and state and local courts. In the event of contract disputes, our Government and International Procurement Group represents entities of all sizes and business mixes (of commercial and government work). Representation includes disputes before the various Boards of Contract Appeals (ASBCA, GSBCA, etc.), U.S. Court of Federal Claims and both state and federal courts. We also assist in the preparation and negotiation of claims with any of the federal agencies, both military and civilian. Our experience includes resolution of terminations for the government's convenience, as well as for default.
Representative matters we have handled include the following:
Bid Protests - Pursuing a protest for a leading engineering services company against the award of a $1.5 billion Environmental Restoration Management Contract by DOE. We protested the award on the basis of the government's failure to conduct an adequate cost realism analysis. Following a 30-hour hearing, the GAO granted the protest and awarded lawyers' fees to our client.
- Representing a client in challenging the award of a large professional services contract. We successfully proved to the GAO that the awardee failed to properly account for uncompensated overtime, thereby invalidating the agency's "best value" source selection. The GAO ordered the agency to reevaluate the proposals and awarded lawyers' fees to our client.
- Representing a small business which was low bidder on a large and complex broadcast antenna project. The agency determined that the company lacked sufficient responsibility, and, based on this finding, the Small Business Administration refused to issue a certificate of competency. We were granted a preliminary injunction by the Court of Federal Claims against an award to any bidder other than our client and, after the agency lost an appeal at the Court of Appeals for the Federal Circuit, it awarded the contract to our client.
- In numerous bid protest actions at both the agency and GAO, our lawyers have convinced the agency to take corrective action favorable to our client, thereby rendering the protest grounds moot.
- Handling a large number of protests arising under state and local government procurements, as well as those involving the award of grants. Each protest has presented unique issues arising from the differing protest procedures (or lack thereof) in each jurisdiction and forum.
Claims- Assisting a leading aerospace contractor in preparing one of the largest delay and disruption claims ever prosecuted against the U.S. government. The effort involved coordinating dozens of fact witnesses and reviewing millions of documents. The claim was settled with the government prior to initiating full-scale litigation.
- Preparing a $250 million Request for an Equitable Adjustment (REA) involving changes, defective specifications, delay and disruption for a large contractor furnishing weather radar systems for the government at various sites throughout the U.S. and overseas. The REA was settled successfully prior to the initiation of litigation.
- Preparing and successfully negotiating a $200 million claim against the Department of Defense (DOD) for changes, over inspection and defective specifications under a $1 billion systems integration contract for the various DOD medical facilities in the U.S. and overseas.
- Representing a company that was awarded a major DOD software system contract. Subsequent to award, the agency made major changes to the original specifications and fell seriously behind in contract administration and payments. Following the submission of a claim for excusable delays, the government terminated the contract for convenience and denied the company's claim for costs on the basis of the limitation of cost clause. After protracted negotiations, the parties agreed to an ADR proceeding. As a result of the ADR proceeding, our client was awarded all of its costs ($11 million).
- For a munitions manufacturer, leading a team of the client's employees in preparing a $20 million claim against a government agency based on defective specifications, superior knowledge, mistake in bid, and failure to cooperate theories. The matter was expeditiously settled to the client's satisfaction.
- For a contractor that designs and manufactures high-tech training systems for the federal government and state and local governments, successfully resolving a claim for unabsorbed overhead with the Navy.
Litigation- Representing a Fortune 500 company in an appeal before the Armed Services Board of Contract Appeals (ASBCA) arising from a termination for convenience of a Navy contract. The government sought repayment of most of the contract payments on the basis that there was no first article approval. At the same time, the Department of Justice's Defense Criminal Investigative Service, in conjunction with the local U.S. Attorney's office, began an investigation of the contract. We convinced the Department of Justice to drop the matter without bringing either civil or criminal charges. Subsequently, we settled the Board litigation with no repayment to the government and a substantial additional payment to the contractor.
- Representing a leading healthcare provider in the pursuit of cost reimbursement against the District of Columbia government.
- For a large aerospace company, successfully defending a default termination against its subcontractor and affirmatively recovering over $10 million on a counterclaim for late and defective products.
- Successfully litigating a case for a large construction company, where we proved that the prime contractor breached a subcontract under a Navy contract by wrongfully terminating our client. We tried the case before a jury in a Federal District court.
- Successfully defending the Maryland Department of Transportation against a series of lawsuits involving the Baltimore subway system. These cases covered a multitude of complex issues including delay and disruption, defective specifications, differing site conditions, changes, and suspensions of work.
- Successfully defending a large medical institution against claims for cost reimbursement under a series of federal contracts and grants.
- For an architect-engineering firm, successfully defending against a claim brought by the Naval Facilities Engineering Command for the allegedly defective civil engineering design for a relocatable over-the-horizon radar system.
- For an architect-engineering firm, successfully defending against a claim brought by the City of Chicago for the allegedly defective design of the O'Hare International Terminal.
- For an environmental remediation company, successfully preparing and prosecuting a differing site conditions claim against the Dallas/Fort Worth International Airport in Federal District Court in Fort Worth, Texas.
- Representing a large savings and loan company in a breach of contract action involving the government’s failure to abide by its commitments to such entities (one of the "Windstar" cases).
- Representing one of the largest Port Authorities in the country in various litigation matters, including those involving violations of the public bidding statutes.
International Contracts/Export Controls
V&E; assists both military and commercial clients in a range of international contracting matters, including foreign military sales (FMS), offset arrangements, technology transfer, export licensing of both military and commercial (or dual-use) equipment and technology, Foreign Corrupt Practices Act (FCPA) issues, and direct sales of military items to foreign governments, including those sales financed by the U.S. government. Our lawyers have substantial expertise in assisting clients in complying with export controls and embargo regulations, including the International Traffic in Arms Regulations (ITAR), the Export Administration Regulations (EAR) and various embargo regulations issued by the Office of Foreign Assets Control (OFAC). We have assisted numerous clients in internal audits, internal investigations, and voluntary disclosures, as well as providing assistance on criminal and civil investigations.
Representative matters we and other members of the firm have handled include the following:- Representing a large architect-engineering firm in a Foreign Corrupt Practices Act investigation spanning a series of contracts covering over a decade of performance.
- Defending the construction manager for the Alexandria (Egypt) Sanitary District against claims brought by various contractors in connection with the construction of the Alexandria Wastewater Treatment Facility. The client was so satisfied with the result that we were awarded medals by the Egyptian government.
- Testifying as an expert witness for the accused in a case arising under an indictment for various alleged violations of the Arms Export Control Act. The same lawyer was later appointed by the Court to monitor the company's export compliance.
- Investigating and presenting numerous voluntary disclosures under the Export Administration Regulations and the International Traffic in Arms Regulations.
- Defending a major aerospace company against a multi-million dollar civil sanctions charge brought by the Office of Defense Trade Controls (ODTC).
- Representing both individuals and a company in export denial proceedings brought before the International Trade Administration (ITA). After an emergency hearing which we requested, we negotiated a settlement in which all charges were dropped against both an individual and the company who were charged as related parties. As a result, the company was able to continue conducting business without threat of a denial order.
- Representing a number of companies in interpreting and applying the DSAA certification requirements. In this regard we have structured and gained approval for arrangements relating to foreign consultants, foreign purchases and foreign offsets.
- Preparing Commodity Jurisdiction Determination requests which have resulted in the removal of ITAR controls over our clients' products and technology.
- Preparing or assisting in the preparation of Technical Assistance Agreements (TAAs), Manufacturing License Agreements (MLAs), and licenses for the export of equipment and technology.
- Representing a U.S. aviation company in connection with allegations that it had violated the Yugoslavia sanctions regulations. Following our internal investigation and response to the initial claims, the Treasury Department terminated its investigation without filing charges.
- For a major European telecommunications company in what apparently was a first request, obtaining authorization from the Department of Commerce under certain de minimis U.S. content rules of the Export Administration Regulations for the commingling of U.S.-origin and foreign software integrated into European-made products destined potentially for re-export to countries that remain subject to U.S. embargoes.
- Representing two individuals in administrative proceedings brought under the Export Administration Regulations following the settlement of criminal charges against them arising out of their involvement in allegedly unlawful exports of U.S.-origin aircraft parts to Libyan end users. Despite the guilty pleas previously entered by our clients, we successfully presented facts and arguments leading to a settlement that included only minor civil penalties against one individual and none against the other.
Privatization and Outsourcing
We represent companies, as well as federal and state agencies, relating to the privatization of government activities and functions, including water and wastewater, environmental remediation, military housing, highways and infrastructure and operations and maintenance. Our lawyers have drafted and negotiated applicable terms and conditions, assisted in pricing, and reviewed relevant legislation and regulations to facilitate completion of the transaction. Together with our project finance lawyers, we also have arranged for and negotiated the terms of financing for privatization projects.
We and other members of the firm have handled the following:- Representing a federal agency in all aspects of the largest federal privatization activity ever undertaken by the federal government (over $7 billion).
- Assisting developers and finance companies in the privatization of military family housing for the U.S. Army and U.S. Navy.
- Negotiating a $500 million information technology outsourcing contract with the South Australian Government.
- Preparing a white paper for two large government contractors addressing various risks and liabilities associated with privatization.
- Assisting a leading architect-engineering contractor in the negotiation of a number of municipal water and wastewater privatization projects.
- Representing an international water company in connection with the potential privatization, expansion, refurbishment and operation of the water system in Guam; this effort also covered water collection, and the treatment and distribution of wastewater at U.S. bases on the island.
- Counseling a large consulting firm which assisted the U.S. Navy in drafting the request for proposals and evaluating proposals as part of the privatization of environmental services.
- Representing a number of Rural Electric cooperatives in the privatization of their government debt.
Mergers and Acquisitions, Due Diligence and Corporate Reorganization
V&E; lawyers have extensive experience in performing antitrust analyses, due diligence and other internal analyses for some of the largest mergers and acquisitions in the government contracting industry. These efforts include reviewing claims by or against the target entity, evaluating risks associated with such acquisitions, providing counseling on the cost treatment of various aspects of the transaction and seeking government approval of the merger or acquisition. We also have assisted clients after completion of the transaction including obtaining necessary clearances, drafting novation agreements, establishing separate federal contracting entities to minimize compliance issues in otherwise commercial companies, handling miscellaneous cost accounting and disclosure issues, and monitoring the transfer of assets and government property.
We and other members of the firm have handled the following: - Performing government contracts due diligence for one of the largest corporations in the world in the acquisition of two large electronics firms.
- Reviewing and evaluating the status of government grants and contracts (including claims by and against government agencies) in connection with two large acquisitions by a health care corporation.
- Representing a number of companies in the divestiture of entities performing government contracts, including preparing Opinions of Counsel regarding issues relating to the divestitures.
- Representing a large pump manufacturing and engineering company in the acquisition of worldwide operations of an Australian concern, including handling premerger notifications in the U.K., Australia, Finland and Brazil.
- Obtaining approval of a $16 billion acquisition by a large oil field services company from the U.S. Department of Justice and competition authorities in the European Union, Australia, Canada, Mexico and Brazil. Previously, handling a series of multimillion dollar acquisitions by the same corporation.
- Handling the antitrust aspects of a large telecommunications equipment company in the acquisition of a number of telecommunications businesses.
Voluntary Disclosures/Corporate Disclosures
V&E; Government and International Procurement lawyers assist companies in making voluntary disclosures under the Department of Defense (DOD) Voluntary Disclosure Program, as well as under the various voluntary disclosure provisions of the False Claims Act (FCA), Foreign Corrupt Practices Act (FCPA), International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR). Our lawyers are experienced in all aspects of the Voluntary Disclosure process, from identifying areas of potential violations, to conducting internal investigations and formulating strategies for disclosures. Our lawyers also negotiate with government agencies responsible for enforcement of the voluntary disclosure provisions and have substantial experience appearing before the administrative bodies. Our experience and familiarity with the administrative agencies enable us to guide clients successfully through the Voluntary Disclosure process.
Non-Appropriated Funds Contracts
V&E; lawyers have extensive experience in connection with non-appropriated fund instrumentalities of the federal government. These agencies include military exchanges, commissaries, clubs and morale welfare and recreation activities that sell food, merchandise and services in excess of $10 billion annually to military personnel.
We and other members of the firm have handled the following:- Representing a number of food and beverage companies in their pursuit of contracts with DOD commissaries for sales of their products.
- Assisting one of the largest fast food companies in successfully negotiating contracts for installation of facilities on federal bases.
- Developing strategies for a large snack company pursuing opportunities with federal, state and local government agencies for stocking its snack foods.
|
|
|
|
>> Back to Top |
|
|
|
|
