Government Contracts Counseling & Litigation
Davis Wright Tremaine’s government contracts counseling and litigation attorneys advise and litigate on behalf of government contractors selling goods and services to public agencies. We seek to be a long-term partner in our clients’ government contracts business goals, and we recognize that legal advice must be guided by an understanding of our clients’ overall business objectives.
Focused expertise backed by decades of experience
As litigators, we regularly prosecute Contract Disputes Act (CDA) claims before courts and boards of contract appeals, and we work with our clients from preparation and submission of the certified claim through final judgment, including appeals. We also work with our clients during contract performance to manage risk and consider alternatives to formal litigation. Consistent with this approach, we advise clients on contract interpretation and performance requirements, negotiate with agency contract officials during contract administration, prepare Requests for Equitable Adjustment, and negotiate contract modification terms.
We also have a robust bid protest practice. When presented with a potential protest, we quickly mobilize and work with our clients to examine the solicitation requirements and the proposal and to identify potential protest grounds. We also offer advice through the debriefing process. Before filing, we ensure that our clients understand the protest process and potential outcomes, including all avenues for obtaining meaningful “corrective action,” as well as the legal and business implications of “suing the client.”
Because our clients include a significant number of small businesses, we are experienced in litigating size and status protests before the U.S. Small Business Administration’s (SBA) Office of Hearings and Appeals. Similar to Government Accountability Office (GAO) protests, successful prosecution and defense of SBA size and status protests require strict adherence to protest procedures and timelines, as well as expertise in substantive procurement law. We regularly advise small-business contractors with respect to compliance with all SBA government contracting programs, including 8(a) SBCs, WOSBs, HUBZONE SBCs, and SDVOSBs. This includes advice and counseling with respect to compliance with small-business subcontracting and joint-venture rules. Our working knowledge and expertise with SBA regulations make us effective advocates when business size or status is challenged.
As counselors, we seek to understand our clients’ strategic business plans so that our advice and counseling always promotes your short- and long-term business goals and objectives. Government contractors are subject to a complex, rigorous, and often unforgiving regulatory structure and enforcement environment. Our government contracts attorneys have decades of collective experience and wisdom navigating this environment. We strive to be a member of your leadership team – and to be accessible and responsive in providing sound and reliable counsel so that legal considerations are fully integrated into your business plans and problems are anticipated before they arise. As discussed in greater detail below, we offer advice across a broad spectrum of substantive issues confronting companies involved in public procurement.
As thought leaders, we study, write, and speak about emerging areas of government contract law and are actively involved in the legal, industry, and trade organizations that represent or otherwise affect our clients’ businesses. These organizations include the Pacific Northwest Defense Coalition, the Associated General Contractors, the National Contract Management Association, and the American Bar Association’s Section of Public Contract Law and Forum on Construction Law. Government contract law is complex and ever-changing. Through our active participation in the government contracts community, our attorneys promote and influence that change on behalf of our clients.
Your complete, integrated legal solution
Traditional government contracts matters often intersect with other specialized areas of practice. As a full-service firm, our government contracts attorneys work closely with our construction, corporate, white-collar, labor and employment, benefits, tax, environmental, intellectual property, energy, insurance, land use, and real estate attorneys to provide integrated and efficient and cost-effective legal solutions for our clients.
Industry and Substantive Focus Areas
Our primary industries and substantive focus areas include:
Alaska Native Corporations. Alaska Native Corporations (ANC) pursuing and performing government contracts are subject to specific, if not unique, rules and regulations. In both our Anchorage and Seattle offices, we have specialists who work in Alaska, understand these frequently evolving legal authorities, and regularly advise ANC clients on issues such as 8(a) compliance, teaming agreements, joint-venture agreements, the ostensible subcontractor rule, NAICS code management, corporate and subsidiary structuring, and, more broadly, affiliation under SBA regulations.
Ethics, Compliance, & Investigations. Even a contractor with the most comprehensive compliance and ethics plan may need to answer for the actions of a rogue employee involved in questionable or potentially fraudulent conduct. We frequently provide specialized, in-house procurement and ethics training for our clients. We also have performed numerous, complex internal investigations to assess if there is credible evidence requiring mandatory disclosure to the government. Our attorneys have also handled complex government fraud and FCA investigations, including for clients facing concurrent criminal, civil, and administrative “parallel proceedings.” We have negotiated “global” dispositions of serious matters involving multiple government agencies and multiple civil and criminal enforcement proceedings.
Bid Protests. As noted above, we have extensive experience representing disappointed bidders, intervenors, and agencies in defending their award decisions and procurement processes. We appear most frequently before the Court of Federal Claims and GAO and have handled protests involving a range of substantive issues, including unequal discussions, responsibility, improper price/technical tradeoff, bias, conflicts of interest, cost realism, and departure from stated evaluation criteria.
Buy American Act/Trade Agreement Act Compliance. Contract clauses implementing the Buy American Act and Trade Agreements Act are often flowed down to federal subcontractors. Our attorneys regularly advise suppliers and manufacturers regarding their supply chain to ensure compliance.
Claims. Government contracts claims litigation is at the core of our practice. Our attorneys regularly handle government contract disputes, including before the Boards of Contract Appeals, the Court of Federal Claims, and the Court of Appeals for the Federal Circuit. We draft requests for equitable adjustment (REAs) and complaints; we understand the CDA and theories of entitlement; and, from the start, we formulate and consider recovery in view of our clients’ expectations.
Construction Counseling and Litigation. In conjunction with our construction group, we advise prime and subcontractors representing numerous trades (e.g., concrete, steel erection, mechanical, electrical) on a range of public construction projects, including military housing, military facility renovation (e.g., Air Force Headquarters renovation, VA hospital construction), heavy civil (e.g., airfield reconstruction and renovation, public roadway reconstruction), wastewater, open cut projects, treatment and pump station facilities, hydro and dam projects, port, and other major military infrastructure projects. We regularly litigate construction claims under the FAR remedy granting clauses, including the changes, differing site conditions, suspension, variation in estimated quantities, and disputes clauses. Consequently, we frequently advise our clients on which remedy is most favorable given the particular factual scenario and have assisted our clients in drafting preliminary notice letters, change proposals, REAs, and claims. When a subcontractor claim is being passed through, we assist in drafting the appropriate claim prosecution agreement as well.
Data Rights. The government obtains broad rights when intellectual property is developed, conceived, or reduced to practice with government funding. Consequently, contractors must actively protect their rights in emerging technology and computer software. On behalf of our clients, we prepare and review intellectual property and software license agreements and related agreements, negotiate with agencies to both protect and maximize our clients’ rights, and – when necessary – represent contractors to enforce their intellectual property rights.
DCAA Audits. We are experienced with audit procedures and cost-allowability rules and when negotiations do not lead to resolution, our litigators have successfully challenged the “information and advice” DCAA has given to contracting officers on issues such as executive compensation, incurred cost proposals, and termination settlement proposals.
Mergers and Acquisitions. Mergers and acquisitions of companies engaged in government contracting present challenges beyond those typically encountered in comparable commercial transactions. We utilize our considerable government contracts experience and expertise to help our clients minimize risk and maximize value in such transactions.
- Comprehensive due diligence reviews
- Advice and counseling on government contract compliance and performance issues
- Guidance through the novation process
- Assistance with negotiation of terms in the underlying transaction
- Addressing subcontracting issues
- Drafting transaction documents to ensure compliance
Small Business Concerns. Small businesses face unique challenges and compliance requirements and are entitled to significant competitive advantages. We regularly advise small-business prime and subcontractors regarding federal and state small business rules and regulations, including FAR Part 19 and SBA regulations.
Subcontracting. Government subcontractors face a complex regulatory environment and are often pressured to accept risk from the prime contractor. We frequently represent subcontractors working on public contracts, including complex, multimillion-dollar construction projects, on issues such as subcontract negotiation, federal flow-down requirements, and pass-through claim prosecution.
Technology & Cybersecurity. We advise government contractors regarding compliance with the FAR and DFARS cybersecurity requirements, which we expect will be subject to heightened compliance review and enforcement in 2018.
Terminations. We have worked with many different agencies to address show cause notices, cure notices, and, when necessary, to convert cause or default terminations to ones of convenience. When terminated for convenience, we assist our clients in preparing and submitting termination settlement proposals, as well as litigate Contracting Officer Final Decisions, to ensure recovery of all allowable costs.