Procurement Proposal and Contract Counseling
Successful government contract performance begins prior to government contract award. The proposal phase of a procurement is critical not only for competitive reasons, but also for establishing the scope of future government contract obligations.
K&L Gates lawyers are frequently called upon to help clients analyze solicitations and assist with related proposal matters. Our early-phase involvement can minimize the risks that can come with contract award and can reduce the risks associated with contract performance.
When there is trouble during contract administration and performance, we can be of service too. We pride ourselves on practical advice that facilitates resolution of performance issues, whenever possible, at an early stage - before they ripen into claims or disputes.
Protests
K&L Gates lawyers have a wide variety of experience in advising on protests of solicitation defects or contract award decisions. We routinely pursue and defend protests in the United States Government Accountability Office, the United States Court of Federal Claims, and in proceedings before federal agencies. Additionally, we handle protests involving state and local governments and agencies in a variety of jurisdictions.
Contract and Subcontract Claims and Disputes
In some cases, disputes concerning contract and subcontract performance are unavoidable. When situations like this occur, we can facilitate monetary recoveries. Over the past three decades, we have prepared and negotiated many requests for equitable adjustments ("RFEAs") and claims under government contracts and subcontracts. Our goals in these circumstances are the same as yours: prompt resolution, maximum recovery, minimum expense. We recognize that a well-drafted and supportive RFEA minimizes the prospects of litigation with your present, and perhaps, future customers.
When termination of a contract occurs, we advise contractors on termination settlement proposals that permit them to recover incurred performance costs, reasonable profits on the work performed, plus legal, consulting and other expert fees incurred in preparing the termination proposal.
K&L Gates lawyers are experienced government contracts litigators. We have handled disputes before a variety of tribunals: boards of contracts appeals, the United States Court of Federal Claims, and similar state boards and courts. When appropriate, we utilize alternative dispute resolution techniques such as mini-trials and other specialized processes. Our litigation experience encompasses a diverse range of issues, including changes, cost allowability matters, cost accounting standards compliance, defective pricing, defaults, defective specifications, interpretations of contract language, interference by government officials with the work, and waivers.
GSA Contracts
Under GSA's multiple-award schedule ("MAS") program, a variety of United States government agencies purchase hundreds of billions of dollars of hardware, software, pharmaceuticals, medical devices, scientific equipment, and other commercial items, as well as a variety of information technology, consulting and other professional services. K&L Gates counsels mature and emerging companies on the full range of legal issues associated with the MAS program. K&L Gates lawyers have over twenty-five years of direct and substantial experience in MAS matters and related federal vehicles such as government-wide acquisition contracts ("GWACs") and blanket purchase agreements ("BPAs"). We work in every aspect of MAS contracting - proposal preparation, contract compliance issues such as the Industrial Funding Fee, the Price Reductions Clause and the Trade Agreements Act, and audits, investigations and civil fraud claims. We have similar experience in proposal preparation, contract award and performance issues for analogous state and local programs in states as geographically diverse as California, Texas, Florida and New York.
Intellectual Property
A fundamental issue that can arise in many government contracts (as well as in indirect government arrangements such as government reseller agreements) is the proper treatment and allocation of patent rights, rights in technical data, and rights in software. The urgency of this issue has been heightened by statutory and regulatory developments such as the Federal Acquisition Streamlining Act, the Clinger-Cohen Act, other statutes implicating intellectual property interests, and regulatory provisions implementing all of these laws. In addition, the increasing use of special research and development agreements such as OTs and TIAs requires specialized knowledge of the range of intellectual property provisions and rights that can be negotiated in such agreements. We have that knowledge and experience.
K&L Gates’ government contracts practitioners specialize in dealing with the IP issues that arise in contracting with the government. In addition to its government contracts practice, K&L Gates has a nationally recognized, robust and full-service intellectual property practice. As a result, the firm is eminently suited to handle the full range of intellectual property issues that confront any government contractor. For more information on our intellectual property practice, please click here.
Audits, Investigations, Fraud Litigation and Voluntary Disclosures
The audit and investigatory powers of the federal government are substantial and pose great dangers for the unwary contractor. K&L Gates lawyers represent contractors extensively in a variety of audit settings, including audits by the United States General Services Administration, the Department of Veterans Affairs, the Defense Contract Audit Agency, and other similar agencies. In order to resolve concerns in a prompt and effective manner, we encourage full cooperation and careful management of audit interface and response activities.
K&L Gates lawyers also assist government contractors in a variety of matters involving allegations of civil or criminal procurement fraud. We conduct internal investigations to examine potential procurement misconduct; when appropriate, we work with clients to make appropriate voluntary disclosures and to resolve any issues arising from such investigations or disclosures. Working in tandem with our white-collar litigation colleagues, we frequently defend government contractors in qui tam (whistleblower) and other proceedings under the Federal Civil False Claims Act and similar state statutes, as well as in criminal proceedings. For more information on our White Collar Crime/Criminal Defense practice, please click here.
Debarment and Suspension
Debarment and suspension can amount to a "death knell" for companies that do business directly or indirectly with government agencies. K&L Gates lawyers have extensive experience in dealing with the plethora of debarment and suspension regulations and proceedings that exist throughout the federal government and at state and local levels. Our lawyers have negotiated debarment agreements with, or appeared in debarment and suspension proceedings at, the United States General Services Administration, the United States Postal Service, virtually all of the constituent agencies of the United States Department of Defense, and a host of other federal, state and local activities.
Compliance and Education
K&L Gates understands that prevention is the best medicine. That's why K&L Gates lawyers have designed, implemented and conducted compliance reviews for Fortune 500 companies and small businesses alike. These programs are tailored to each client's particular needs. They assess corporate compliance with the laws, regulations, policies and procedures applicable to government contracting. We formulate recommendations for new procedures, policies and programs to promote compliance, and assist our clients in implementing those measures.
We also offer ethics and compliance education and training. Working with your own ethics organization or with expert consultants in the field, we can prepare and deliver training to reinforce corporate ethical principles or educate on substantive legal topics.
Lobbying
At K&L Gates, we combine substantive experience, detailed knowledge of the policy process and access to key decision-makers. Our government contracts team works closely with the firm’s premier public policy practice, positioning K&L Gates to seek legal remedies or congressional assistance to further clients’ business objectives. For more information on our Public Policy practice, please click here.
Our Washington, D.C. office monitors state and federal legislation, as well as significant case law that may impact clients’ businesses. This information often enables clients to be opportunistic in their business dealings with the government.
K&L Gates has one of the nation's leading lobbying practices and works on a regular basis with the various congressional committees and Members of Congress that shape federal procurement law and regulations. As counsel to the industry association Commercial Product Acquisition Team (COMPACT), we were involved in supporting the legislation that eventually became the Federal Acquisition Streamlining Act of 1994. Because the most efficient solution for individual clients in either providing assistance in obtaining government contracts or resolving contract issues that arise after award may not always be via litigation, we are able to utilize our extensive lobbying experience to work with clients and Members of Congress toward arriving at equitable results.
Additionally, the firm at large boasts a former senator, a former governor and Attorney General of the United States, two former members of Congress, as well as key Republican and Democratic counsel and staff to House and Senate leadership, important Congressional committees, and members of Congress. Our lawyers and professionals also have worked in Executive Branch and regulatory agencies, including the Department of Energy, the Department of Defense, the Central Intelligence Agency, the Department of Justice, the Department of Transportation, the Office of Management and Budget, and the Federal Communications Commission.
State and Local Contracting
While state and local procurement requirements are challenging, they offer a multitude of opportunities for public entities and private businesses. K&L Gates lawyers help clients navigate through the many facets of state and local procurement laws, regulations, policies and procedures. We regularly counsel and represent both public and private clients on state and local bidding and contract issues.
Our lawyers advise public sector state and local clients on all procurement-related issues, including:
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Requests for proposals and invitations for bids involving both traditional and alternative procurement methods
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Contract counseling
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Bid protests
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Project close-outs
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Public records requests
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Litigation and dispute resolution
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Procurement policy issues
We also represent private sector clients doing business with state and local entities on procurement-related issues, including:
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Negotiations with state procurement authorities
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Proposal preparation
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Contract counseling
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Compliance with state and local laws and regulations
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Bid protests
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Project close-outs
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Litigation and dispute resolution
Mergers and Acquisitions
K&L Gates' government contracts group brings together a comprehensive set of legal skills when advising clients that are acquiring, merging with, or being purchased by entities that hold government contracts. Because the performance of public sector contracts requires careful compliance with a multitude of unique federal and state laws, executive orders, and contract terms and conditions, and may contain potential liability risks, an acquiring company must identify and ensure that the target company has properly performed and is properly performing its government contracts. Similarly, target companies require assistance in assessing the potential issues associated with mergers and purchases. We regularly assist clients in these areas.
International Procurement Issues
In today's world, procurement matters know no borders. Companies confront a whole host of international procurement issues relating to matters such as sourcing and manufacturing; import and export regulations; the propriety of certain payments; and similar topics.
Our familiarity with pertinent laws, such as the Buy American and Trade Agreements Acts, the Foreign Corrupt Practices Act, as well as the laws and regulations governing imports, exports and foreign military sales, allows us to guide clients as they tackle national and international markets.
CRADAs, OTs and TIAs
In recent years, the federal government has become increasingly innovative in implementing procurement arrangements. Federal agencies are now more receptive to the use of alternative agreements that reduce socioeconomic compliance burdens, permit flexibility in the treatment of intellectual property rights and funding, and generally eliminate the need to comply with complex government regulations concerning cost accounting and allowability.
We frequently work with clients in the drafting and negotiation of cooperative research and development agreements, or "CRADAs," "other transactions," or "OTs,", and technology investment agreements, or "TIAs." In particular, OTs are fast becoming the agreements of choice for companies that want to work with the government in research and development settings without the need for complex government compliance systems or processes.
Small and Small Disadvantaged Businesses
K&L Gates lawyers regularly advise small and small disadvantaged business concerns that perform or seek to perform under special government contract programs, including the 8(a) Business Development Program, HUBZone Empowerment Contracting Program, Women-Owned Small Businesses, Veteran-Owned Small Businesses, Service-Disabled Veteran-Owned Small Businesses, and Native American Businesses.
We advise clients on size issues, set-aside opportunities, program eligibility, subcontracting plans, negotiations, protests and litigation. We counsel small business concerns so they can accomplish their business goals, while remaining eligible for the various government contract programs. In addition, we regularly advise large businesses and prime contractors with respect to small business issues, including subcontracting plans, subcontracts and teaming agreements.