Government Contracts Law

Navigate the challenges of Government contracting with confidence.

Starting from the initial competition to the final closeout of the contract, we will be supporting you.

Various statutes and regulations govern the federal Government’s process in its business dealings with private industry, most notably the Federal Acquisition Regulation (FAR) and the Department of Defense Supplement to the FAR (DFARS). These regulations cover all aspects of the federal procurement process, including how the Government selects, monitors, and makes payments to its Contractors. This area of law is very complex, and our licensed attorneys will provide support and advice in each case. We have experience and practice in all facets of Government Contract Law, including, but not limited to:

Protests

The laws and regulations that govern contracting with the Federal Government are designed to ensure that federal procurements are conducted fairly.

On occasion, however, bidders or others interested in government procurements may have reason to believe that a contract has been or is about to be awarded improperly or illegally or that they have been unfairly denied a contract or an opportunity to compete for a contract. A major avenue of relief for those concerned about the propriety of an award has been the General Accounting Office (GAO), which has provided an objective, independent, and impartial forum for resolving disputes concerning the awards of federal contracts. However, an Agency level protest may also be filed.

If you believe that the Government did not fairly or accurately evaluate your proposal, or did not follow its evaluation criteria (Section M of the Solicitation), then The Law Offices of Baldwin & Briscoe can draft, file, and litigate the Protest on your behalf. Please note that the timelines are stringent (generally ten (10) calendar days) for the Protest’s submission. Our attorneys have filed and litigated several Protests at the Agency level and GAO.

FAR/DFARS Compliance

Federal Government contracts typically include several FAR/DFARS requirements by reference rather than including the full text of the regulations. Therefore, these requirements are easy to miss or overlook. For example, the FAR requires Contractors to have a code of business ethics and conduct within 30 days of award of all non-commercial-item contracts and subcontracts greater than $5 million and with a performance period of 120 days or more. It also requires formal training on the code, internal controls to detect improper conduct, and the display of hotline posters.

We will ensure that all these “hidden” requirements are identified and provide a plan for full compliance. Of course, The Law Offices of Baldwin & Briscoe, P.C. can also help defend the company from allegations of non-compliance.

DCAA/DCMA Issues

The Defense Contract Audit Agency (DCAA) and Defense Contract Management Agency (DCMA) are tasked to review and audit for adequacy Contractor “business systems” such as the Accounting System, Estimating System, Purchasing System, and Business Ethics & Compliance Programs. On December 19, 2008, the DCAA issued MRD 08-PAS-043(R), directing DCAA auditors to cease issuing audit reports that found contractor systems inadequate only in part. As a result, DCAA audit reports now only state that a Contractor’s system is “adequate” or “inadequate.” Consequently, many Contractors are now having their accounting systems deemed inadequate when before, the system would have been inadequate in part and otherwise adequate. Further, the new policy does not recognize different levels of severity. It unfairly penalizes Contractors whose systems have mild deficiencies by giving them the same “inadequate” rating as Contractors having severe deficiencies.

Because a Contractor must have an adequate accounting system before receiving a cost-reimbursement contract, this DCAA MRD has significantly impacted small businesses. In addition, DCAA has also been instructed to flag potential fraud indicators and refer them to the U.S. Attorney’s Office for prosecution. The attorneys at The Law Offices of Baldwin & Briscoe, P.C. have successfully helped small businesses respond to DCAA and DCMA challenges, obtain/retain adequacy ratings, and defend fraud allegations.

Security Clearance Issues

Our. attorneys are experienced and knowledgeable at assisting corporations and individuals in navigating the complicated labyrinth of National Security Clearance rules, regulations, and executive orders.

Given the national security interests involved, the Government has much latitude in revoking security clearances. However, the revocation process provides individuals and businesses with the opportunity to respond to the “Statement of Reasons” (SOR) for the revocation of their clearance and to request a formal hearing (trial) before the Defense Office of Hearings and Appeals (DOHA). The SOR can be based on financial issues (e.g., delinquent debts), personal conduct issues (e.g., DUIs or other arrests), or foreign contacts.

Our attorneys have a sterling record for retaining security clearances for individuals on all types of SORs through persuasive drafting of SOR responses and aggressive representation at DOHA. Whether it’s interacting with the Defense Security Service (DSS) to resolve the impact of Foreign Ownership, Control, or Influence (FOCI) concerns or representing individuals before the DOHA, The Law Offices of Baldwin & Briscoe can provide the expertise you need.

Subcontracting Agreements

Almost all Prime Contractors’ subcontract templates include one-sided and unfair terms they hope you’ll accept but won’t mind if you challenge them. Make sure you know what you are signing!

It is crucial to have a thorough legal review of all of your subcontracts before signing. We can help you review the contract terms to ensure that your needs will be met and that you will not obligate yourself to unnecessary terms and conditions.

Policies & Procedures

DCMA and DCAA require Contractors to implement robust company policies and procedures – and internal quality assurance programs to assure compliance with those policies and procedures – to ensure that business systems processes are consistent, repeatable, and compliant with FAR/DFARS requirements.

The Law Offices of Baldwin & Briscoe can do an adequacy review of your company’s existing policies and procedures, develop a gap analysis for FAR/DFAR compliance, and assist you in the preparation of new policies/procedures and the modification of existing policies and procedures.

Export Compliance

The United States has export control laws governing strategically important technology and products. Exports to certain countries are prohibited, and export authority may be required before exporting products or technology from the U.S. or re-exporting them from a foreign country. Export control laws are highly complex. Much of the exported work will be governed by the International Traffic in Arms Regulations (ITARs) issued by the Department of State or export regulations from the Department of Commerce. In recent years, U.S. government agencies have stepped up their efforts to enforce existing export regulations and significantly stiffened the penalties associated with failing to comply with those regulations. Department of Defense (DoD) Contractors may now be held liable for breach of contract on top of other penalties if they do not comply with U.S. export laws. The Law Offices of Baldwin & Briscoe can help you register your company with the U.S. Government as an official exporter, provide export compliance guidance, assist in the completion of export licenses of all types, and draft/negotiate “Commodity Jurisdiction Requests” to determine if your technology or products could be determined to be subject to the stringent ITAR requirements.

Intellectual Property

The attorneys at The Law Offices of Baldwin & Briscoe regularly counsel clients on ownership and intellectual property rights licensing under federal government contracts and subcontracts.

Our services include counseling clients on protecting their I.P. rights in commercial software, software developed or customized for a federal customer, and technical data delivered under government contracts; negotiating licenses with federal agencies and other Contractors; and representing prime contractors and subcontractors in disputes and litigation over I.P. rights arising out of government subcontracts.

Disputes

The Contract Disputes Act (CDA) imposes a unique process for disputes arising under a government contract. As a waiver of sovereign immunity, courts and administrative boards of contract appeals construe the CDA narrowly. Accordingly, a Contractor with a dispute with the Government must follow the CDA’s mandated procedures, or it risks waiving or otherwise losing its right to proceed against the agency.

Notably, a Contractor must continue performance pending a dispute resolution with the Government. If your company has a dispute with the Government or a Prime Contractor, The Law Offices of Baldwin & Briscoe, P.C. can either guide you through the complex claims process or file/negotiate/litigate the claim on your behalf.

Claims

A Government Contractor initiates the dispute by presenting a “claim” to the Contracting Officer. A claim must: (1) be in writing, (2) request a “sum certain,” and (3) demand a final decision. A significant and relatively confusing body of case law has attempted to define these elements. If the claim is over $100,000, the Contractor must also certify that: (a) the claim is made in good faith, (b) the supporting data are accurate and complete to the best of their knowledge and belief, (c) the amount requested accurately reflects the contract adjustment for which the Contractor believes the Government is liable, and (d) the individual certifying is duly authorized to do so on behalf of the Contractor.

If your company has a dispute with the Government or a Prime Contractor, we can either guide you through the complex claims process or file/negotiate/litigate the claim on your behalf.

Requests for Equitable Adjustments (REAs)

One significant difference between contracting with the Government versus contracting with a commercial organization is the Government’s insistence on the right to make changes during contract performance. In return for this right, the Government provides the Contractor access to an equitable adjustment to the contract price and/or schedule whenever a change is made that will increase or decrease the cost of contract performance or impact contract deliveries or performance. If a change post-award has impacted your company, The Law Offices of Baldwin & Briscoe, P.C. can either guide you through the REA process or file/negotiate/litigate the REA on your behalf.

Mentor/Protégé Agreements

Mentor/Protégé teams offer the best of two worlds: combining the resources, stability, and experience of a large, established business (mentor) with the innovation, focus, and energy of a small, emerging, disadvantaged business (protégé). The Law Offices of Baldwin & Briscoe, P.C. is well versed in the intricacies of the SBA Mentor/Protégé program, how to apply, and the requirements of the Mentor/Protégé Agreement.

Joint Ventures

A joint venture is an association of two or more business entities that combine and pool their respective expertise, financial resources, skills, experience, and knowledge to further a particular project or undertaking. Joint Ventures are generally created for a single activity or project and may have a limited time span.

Joint Venture agreements, commonly called a “J.V.,” are typically formed to pursue a particular U.S. Government procurement where neither business entity meets the solicitation requirements by itself but jointly represents a strong Offeror. Since J.V.s form new companies, all legal requirements must be met. The attorneys at The Law Offices of Baldwin & Briscoe, P.C. have drafted, negotiated, and completed numerous Joint Venture Agreements and ensured the formation of the new business entity.

Teaming Agreements

Teaming Agreements are a commonly used marketing tool whereby a Prime Contractor and Subcontractor agree to combine resources to bid on a particular Government procurement. The attorneys at The Law Offices of Baldwin & Briscoe, P.C. have drafted, negotiated, and completed numerous Teaming Agreements and can provide templates for your company’s use when you are the Prime Contractor. Important business provisions that should be addressed in any Teaming Agreement include:

• Exclusivity. May either party retain a right to change its mind and do business with another prime or subcontractor once the Government has chosen the winning bidder?
• Should the agreement oblige the prime to award a subcontract to the subcontractor, or may the subcontractor merely rely on the implied covenant that the parties must negotiate in good faith?
• To what extent should the parties’ confidentiality and data rights be protected?
• When and how shall termination of the Teaming Agreement occur?
• Will the subcontractor be allowed to participate in negotiations with the government customer concerning the contribution of the subcontractor to the teaming?
• Lastly, should the prime agree in advance to compensate the subcontractor if the Government disapproves of the subcontract for any reason?

Nondisclosure Agreements

Nondisclosure agreements are one of the best ways to protect valuable confidential information businesses want to keep under wraps. That information could be your detailed price proposal, overhead rates, technical proposal, sales plan, a list of customers, a manufacturing process, or a formula for a soft drink.

A nondisclosure agreement ensures that your secrets stay secret – or have legal recourse if they are misused or disclosed to the wrong parties. A nondisclosure agreement – also called an NDA, a Confidentiality Agreement, or a Proprietary Information Exchange Agreement – is a contract in which the parties promise to protect the confidentiality of secret information disclosed during employment or another type of business transaction. The attorneys at The Law Offices of Baldwin & Briscoe, P.C. have drafted, negotiated, and completed numerous NDAs, and can also provide templates for your company’s use.

Terminations

The Law Offices of Baldwin & Briscoe, P.C. can provide invaluable counsel and advice regarding contract terminations, contract restructures, and contract closeouts. Our attorneys have extensive experience in assisting clients in assessing programmatic vulnerabilities (caused by decreasing budgets; changes in threats, roles, and missions; changes in technology; changes in priorities; and cost and schedule growth), developing procurement advocacy strategies, and taking steps to protect against a possible termination for default. And, when vulnerable contracts are terminated or restructured, The Law Offices of Baldwin & Briscoe, P.C. provides the wide range of counseling and litigation services necessary to resolve these matters and obtain maximum recovery for clients.