Various statutes and regulations govern the process the federal governments must follow 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 payment to its Contractors. This area of law if very complex and our licensed attorneys will provide support and advice in each particular case. We have experience and practice in all facets of Government Contract Law such as, but not limited to:
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 the resolution of 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 own evaluation criteria (Section M of the Solicitation), then The Law Offices of Baldwin & Briscoe, P.C. can draft, file, and litigate the Protest on your behalf. Please note that the timelines are very strict (generally ten (10) calendar days) for submittal of the Protest. The attorneys at The Law Offices of Baldwin & Briscoe, P.C. have filed and litigated several Protests, both at the Agency level and GAO.
Federal Government contracts typically include a number of 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. The Law Offices of Baldwin & Briscoe, P.C. will ensure that all of 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.
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 to be 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 determined to be inadequate in part, and otherwise adequate. The new policy does not recognize differing levels of severity, and unfairly penalizes Contractors whose systems have benign deficiencies by giving them the same rating – “inadequate” – as Contractors having serious deficiencies. Because a Contractor must have an adequate accounting system before it can receive a cost reimbursement contract, this DCAA MRD has had a particularly significant impact on small businesses. In addition, DCAA has also been instructed to flag potential fraud indicators and refer them to the US 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
The Law Offices of Baldwin & Briscoe, P.C. attorneys are experienced and knowledgeable at assisting both corporations and individuals to navigate 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., bankruptcy or delinquent debts), personal conduct issues (e.g., DUIs or other arrests), or foreign contacts. The attorneys at The Law Offices of Baldwin & Briscoe, P.C. have a sterling record for retaining security clearances for individuals on all types of SORs through both 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, P.C. can provide the expertise you need.
Almost all Prime Contractors’ subcontract templates include one-sided and unfair terms that they hope you’ll just accept, but won’t really mind if you challenge. Make sure you know what you are signing! It is important to have a thorough legal review of all of your subcontracts prior to 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 – in order to ensure that business systems processes are consistent, repeatable, and compliant with FAR/DFARS requirements. The Law Offices of Baldwin & Briscoe, P.C. 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/or the modification of existing policies and procedures.
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 extremely complex. Much of the exported work will be governed by the International Traffic in Arms Regulations (ITAR’s) 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 the failure to comply with those regulations. Department of Defense (DoD) Contractors may now also be held liable for breach of contract on top of other penalties in the event they do not comply with U.S. export laws. The Law Offices of Baldwin & Briscoe, P.C. can help you register your company with the US 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.
The attorneys at The Law Offices of Baldwin & Briscoe, P.C. regularly counsel clients on issues of ownership and licensing of intellectual property rights under federal government contracts and subcontracts. Our services include counseling clients on protecting their IP 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 IP rights arising out of government subcontracts.
The Contract Disputes Act (CDA) imposes a special 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 that has a dispute with the Government must be careful to 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 resolution of a dispute 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.
A Government Contractor initiates the disputes process 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 his or her 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, 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.
Requests for Equitable Adjustments (REA’s)
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 your company has been impacted by a change post award, 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 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.
A joint venture is an association of two or more business entities who combine and pool their respective expertise, financial resources, skills, experience, and knowledge in the furtherance of 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 referred to as a “JV”, are typically formed to pursue a particular US Government procurement where neither business entity meets the solicitation requirements by themselves, but jointly represent a strong Offeror. Since JVs form new companies it is essential to ensure all legal requirements are met. The attorneys at The Law Offices of Baldwin & Briscoe, P.C. have drafted, negotiated, and completed numerous Joint Venture Agreements and have ensured the successful formation of the new business entity.
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 to 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 the subcontract for any reason?
Nondisclosure agreements are one of the best ways to protect valuable confidential information that businesses want to keep under wraps. That information could be your detailed price proposal, overhead rates, a technical proposal, a sales plan, a list of customers, a manufacturing process or a formula for a soft drink. By using a non-disclosure agreement, you can ensure 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 or a Confidentiality Agreement or a Proprietary Information Exchange Agreement – is a contract in which the parties promise to protect the confidentiality of secret information that is 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.
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.