Overview of Government Contract Law
Government contracts law is a specialization in the legal field that focuses on the regulation and administration of public procurement processes. These procedures are complex, often subject to rigorous scrutiny, and typically encompass countless rules, requirements, and governing principles at federal, state, and local levels. Many of these rules and regulations simultaneously govern procurement projects spanning multiple jurisdictions. For these and other reasons, businesses should rely on experienced legal firms to navigate the complexities of these proceedings . From the drafting of bid proposals and pricing contracts to challenging the status quo by asserting regulatory violations in bid protests, lawyers who specialize in government contracts understand the intricate details of procurement law. Especially when conducting business with the federal government, it is important to have a lawyer who is intimately familiar with the way these contracts work. Otherwise, your current or prospective handling of even minor issues could have unintended consequences in the future.
Choosing the Right Law Firm for Government Contracts
The qualification of a government contracts law firm is not based on any one thing. Certainly, the firm’s experience, reputation, size, and location are among the general considerations. In my view, however, it is important that the firm’s practice includes litigation in the Court of Federal Claims and the ASBCA. The simple reason for this requirement is that these sources of litigation include the evaluation of attorney fees and costs under the EAJA and recovery of damages under the CDA (regardless of prevailing party status). If the firm does not litigate in these forums, it will be challenged to get its clients, future and present, professional fees and costs for the work done to protect their rights.
In addition to the firm’s overall experience, I have found that it is important to examine the scope of the firm’s government contracts practice. Contractors doing business with the federal government face a wide variety of federal administrative and regulatory matters. These include the FAR, labor compliance, the HUBZone regulations, and the heavy overlay of federal criminal laws with which a government contracts practitioner must have some familiarity. It is, therefore, essential that the firm have at least some depth in these areas, if it is to provide comprehensive representation for issues facing its clients and those with whom it does business. A government contracts firm’s website should provide prospective clients with a clear picture of practice competence in this area. A new client wants to know, at the outset, whether problems that may arise in the future will be handled by the firm’s lawyers or referred to other counsel. It is well worth the client’s time to do a little homework on the firm’s capabilities and experience before making a decision.
Leading Law Firms in Government Contracts
Over the years, a select group of law firms have risen to the forefront of the government contracts legal landscape. These top law firms have established themselves as leaders in the field through a combination of deep knowledge, unrivaled experience, and a track record of achieving client success.
Leading the elite group of government contracts law firms is McKenna Long and Aldridge, after a merger several years ago with the United Government Services practice group of McKenna Long and the Washington based government contracts practice group of Atlanta’s McKenna Long and Aldridge and the Houston based Government Contracts group of the Houston Office of the law firm. Holland & Knight LLP is a formidable government contracts firm in the Washington area with strong practice areas in government contracts compliance, bid protests and pre-award bid protests, and cost accounting and pricing. Kirkland & Ellis is among the top government contracts firms in the Washington area. The firm has significant experience in a number of acquisition sectors, including private equity and acquisitions law with a seasoned and dedicated government and regulatory affairs law group in its Washington D.C. office. Akin Gump’s government contracts group lawyers and professionals represent buyers and sellers of government contractors, both public and private. In deals involving government contractors, Akin Gump lawyers have handled M&A transactions of all types and sizes, as well as joint ventures, minority investments, tender offers and leveraged buyouts. Arnold & Porter LLP’s Government Contracts practice offers sophisticated representation to contractors across the full life-cycle of a government contract, from bid preparation through performance, including post-performance issues. The Arnold & Porter Government Contracts Group assists contractors in managing and resolving compliance, licensing, reporting and litigation issues that arise out of complex contracts and regulations, including investigations and traditional litigation. Covington & Burling provides integrated regulatory, legislative, and litigation counsel on matters of importance to government contractors on a wide range of issues from the company’s start-up days to its successful exit and beyond, including federal acquisition regulation, intellectual property, tax, labor/employment and ERISA issues. WilmerHale’s Government Contracts Practice provides clients with comprehensive, coordinated services to meet the full spectrum of their contracting needs. Such needs include litigation, securities, labor and employment, corporate, international trade, intellectual property, government relations, environmental, antitrust, export controls, and more.
Case Studies in Government Contracts
In 2019, international engineering firm SYSTRA completed an $88 million U.S. Department of Transportation (DOT) project on the California High-Speed Rail Authority’s (CHSRA) Fresno to Bakersfield route. Facing allegations of 15 false claims on the project, SYSTRA and its subcontractor Kiewit/Severud – a joint venture – sought guidance from CohnReznick to bring their false claims action against the federal government to an amicable resolution.
The attorneys prepared a response to the government’s prima facie case, showing that the false claims action was not viable and provided supporting legal authority. The matter was resolved in favor of CohnReznick’s clients, mitigating the damages substantially for Kiewit/Severud while also protecting SYSTRA’S reputation.
The Miami office of Holland & Knight advised and represented Stonehenge Technology Corporation (STC), a small disadvantaged business headquartered in Israel that provides IT services to U.S. federal agencies, in connection with the award by the U.S. Agency for International Development (USAID) of a prime contract for Web-based, technological services to the U.S. Agency for International Development’s (USAID) Global Health Bureau. The contract has a value of $16 million and a base period of two years , with two one-year options. STC is working with Akira Technologies on the project.
Holland & Knight successfully assisted STC in its bid protests to the Government Accountability Office and challenged USAID’s decision to terminate the company’s award of the contract. In connection with the protest, the firm’s government contracts lawyers also had to defend against a partner’s terminated CEO and former majority shareholder for breach of his obligations to the company and for allegedly making disparaging remarks about STC.
A large, multi-national manufacturing company retained the firm to assist with a bid protest after its proposal was disqualified. The proposal was disqualified based on a technical evaluation of the proposal which made irrational conclusions about the proposal analysis and gave markedly different evaluations for equipment systems when bid pacs appeared to be identical. Ultimately, the agency was persuaded to reinstate my client’s proposal and to correct its proposal evaluation. After the protest was sustained, it became clear that the two other competing proposals for the job were insufficiently evaluated and the award was terminated in the best interest of the government.
Future Developments in Government Contracts
The landscape of government contracts law is ever changing and evolving. As we see in nearly every aspect of the law, new trends emerge nearly everyday, presenting government contracts law firms with a whole host of issues and new areas to tackle as well. The way lawyers will have to deal with these issues in the future stretches across the world of government contracts. Emerging areas that are vital to look out for are in lobbying and regulatory advocacy matters, such as the Federal Acquisition Regulation (FAR) and the Defense Federal Acquisition Regulation Supplement (DFARS). Presently, there have been new developments in public procurement involving an ever more intense increase in competition, not only between contractors and their competitors, but also between contractors and the government. Going forward, law firms will need to establish a deep understanding of emerging issues with the following: supply chain management, cybersecurity, intellectual property protection to companies working in cutting-edge technology and research and development. Government contracts law needs to change with the times, and there is no question that the future of this area is going to involve increased challenges due to the rise of new technologies and expanded uses of old technologies. The growth of electronics, wireless capabilities, software, the Internet, energy storage technology, electrical engineering, and nanotechnology are fields that lawyers will have to have an understanding of, and how they relate to the law. The increased amount of contracting opportunities with the government encourages law firms to stay up-to-date on regulations and changes that occur within government contracts and public procurement. The Government Accountability Office (GAO) reports substantial increases in bid protests over the last few years, which could be attributed to greater competition for fewer federal contracts. Law firms that have a firm understanding of the bid process are valuable assets for government contractors.
Conclusion and Outlook
A comprehensive understanding of the landscape of government contracts law firms is paramount in ensuring that the chosen firm possesses the specific expertise necessary to provide effective counsel in public procurement matters. The effective lawyer will have significant experience advising clients on how to best navigate the complexities of government contracting, and in advocating for their client both in courtrooms and in the boardroom. Whether the representation of a business takes place at the bid protest level or in litigation, working with a firm that possesses government contracts specialists with deep knowledge of the industry can be invaluable . An emphasis on practical experience within the firm is an important factor when considering which government contracts law firm may be the most appropriate for your needs. As discussed above, despite the proliferation of firms with substantial government contracts practices, the niche nature of the legal specialty means that many of the best attorneys are in high demand and at quite a premium. Finding a firm that is able to balance a depth of experience amongst all of its lawyers without overcharging requires an active search aimed at locating the right fit.