Morgan Lewis advises clients ranging from Fortune 20 companies to startups throughout the government contracting lifecycle. We appreciate the opportunities and challenges associated with doing business with federal, state, and local governments. Understanding the legal, regulatory, and political workings of the procurement sector, our government contracts practitioners help clients cut costs, mitigate risk, and gain the best possible advantage in government contract transactions, disputes, investigations, and strategic business planning.
We work with defense and civilian agencies on all types of government contracts and funding vehicles, including defense, aerospace, satellite and space, energy, healthcare, information technology, telecommunications, life sciences, and commercial products and services. We also assist contractors in their dealings with state and local governments for a variety of products and services. If disputes arise that cannot otherwise be resolved, our lawyers litigate aggressively and successfully. We also defend contractors in investigations by agency inspectors general (IGs) and other government enforcement agencies, as well actions brought by qui tam relators (or whistleblowers) or the US Department of Justice (DOJ) under the False Claims Act (FCA).
Our work for government contracts clients covers a wide range of disciplines, including litigation, regulatory, and transactional matters.
The global scope of our practice is a distinguishing feature. Leveraging our firm’s international presence, our team also handles government contracts matters involving non-US jurisdictions, including in Iraq, Afghanistan, Germany, and Russia.
The US government recovered a record $5.7 billion in FCA-related settlements in fiscal year 2014 and secured another $3.5 billion in fiscal year 2015. Given increasing DOJ scrutiny and the proliferation of qui tam whistleblowers under the FCA, the enforcement climate in the federal contracting space will remain challenging for years to come. Contractors increasingly turn to our government contracts team for assistance with federal investigations, FCA litigation, and mandatory disclosures.
Our government contracts team works as appropriate with colleagues in our white collar and government investigations practice, which includes more than a dozen former assistant US attorneys. Together, we resolve investigations by agency IGs, the DOJ, and other federal, state, and local enforcement authorities alleging government contracts noncompliance. We also resolve civil and criminal violations relating to the performance of government contracts.
We have defended clients in industries as diverse as technology, professional services, defense/aerospace, life sciences, nuclear energy, telecommunications, utilities, and international construction. We have dealt with virtually every leading enforcement agency, including the DOJ, the US Department of Defense (DOD), the US Air Force (USAF) Office of Special Investigations, the Naval Criminal Investigations Service, the Defense Contract Audit Agency (DCAA), the now-defunct Special Inspector General for Iraq and Afghanistan Reconstruction, and IGs at the General Services Administration (GSA), the US Department of Veterans Affairs (VA), the National Security Agency (NSA), the US Department of Homeland Security, the US Postal Service (USPS), the US Coast Guard, and the US Department of Transportation, among others.
Our government contracts practitioners also conduct compliance- and ethics-related internal investigations and serve as counsel for defense contractors in congressional inquiries in the defense and national security arenas.
One of the distinguishing features of our team has been its success in defending FCA cases relating to allegations of procurement fraud. In the recent past, members of our practice have filed four successful motions to dismiss FCA actions brought against two of the largest US technology contractors, and we have resolved numerous other FCA matters. We also have resolved related concerns with agency suspension and debarment officials (SDOs).
We routinely conduct internal investigations and assist with mandatory disclosures required by the Federal Acquisition Regulation (FAR) mandatory disclosure rule concerning credible evidence of certain criminal or civil violations related to a government contract, as well as overpayments.
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Federal government suspension and debarment officials (SDOs) recently have become more active in their efforts to ensure that the government does business with only those contractors deemed “presently responsible.” More frequently, SDOs are conducting informal reviews of contractors originated by “show cause” or “request for information” letters, and sometimes even based on media reports as well as more traditional suspension and debarment proceedings. We assist our clients in navigating suspension and debarment issues at a number of federal agencies, including all DOD components, the GSA, the US Environmental Protection Agency, and the USPS.
We also have assisted a number of clients in dealing with state suspension and debarment concerns. As part of these representations, we frequently assist contractors in enhancing their existing ethics and compliance programs and communications, internal controls, and other procurement-related policies and procedures so SDOs are comfortable dealing with responsible contractors and suspension or debarment is unnecessary to protect the government’s interests.
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Companies regularly doing business with the US government often find themselves faced with circumstances involving actual or potential claims, or requests for equitable adjustments. Our lawyers have a track record of helping clients successfully resolve US government contract disputes through effective predispute positioning, avoidance, or settlement where possible, and through successful litigation and recovery where not.
We have a significant presence in all the major government dispute forums, including the Court of Federal Claims (COFC), the Armed Services Board of Contract Appeals (ASBCA), and the Civilian Board of Contract Appeals. Our track record speaks for itself: Morgan Lewis has secured some of the largest claims recoveries in the last decade. Our senior leadership team represents clients in claims proceedings involving the DOD, DOJ, VA, DOE, and GSA.
Our government contracts team includes a current member of the court-appointed COFC Advisory Council and a member of the council’s Emeritus Leadership Forum, as well as a former president of the COFC Bar Association and a Law360 Government Contracts MVP. A recently published COFC decision described our firm as having “extensive experience” in the court and as representing clients “zealously, creatively, and with civility.”
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Constant calls for lower public-sector spending and the increasing use of indefinite-delivery, indefinite-quantity contracts have reduced available contracting opportunities in many parts of the public sector. Consequently, bid protests are an increasingly common occurrence in federal, state, and local government procurements. We litigate bid protests and small-business-size protests to attack or defend the award of contracts and to challenge the ability of competitors to receive such contracts.
We successfully represent large technology, defense/aerospace, professional services, and medical device contractors, as well as federally funded research and development centers and small businesses, in such proceedings. We appear in numerous bid protest tribunals, including the Government Accountability Office (GAO), the Court of Federal Claims (COFC), the Small Business Office of Hearing and Appeals, and other federal agency-level bid protest proceedings, as well as in a number of state and local tribunals.
Morgan Lewis’s lawyers work diligently to secure relief from government mistakes during the preaward procurement process, to challenge the improper award of contracts to our clients’ competitors, and to help the government defend contracts that have legitimately been awarded to our clients. Our team has strong relationships with government protest counsel and is also a known entity before these tribunals. Because of this experience, we efficiently and strategically respond to the complex issues and short filing deadlines typical in these forums. We are often successful in securing corrective action for our clients in bid protests before the conclusion of such proceedings, reducing costs and increasing competitive opportunities for our clients.
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Morgan Lewis’s lawyers are leaders in assisting companies that sell commercial products and services to the government across industries such as technology, professional services, scientific equipment, tools, medical devices, and pharmaceuticals with the complex rules and issues associated with the Federal Supply Schedule (FSS) program.
We provide assistance to resellers, distributors, and manufacturers with issues such as proposal preparation, commercial sales practices disclosures, negotiation of appropriate tracking customers for price reductions clause (PRC) compliance purposes, systems compliance and training, domestic sourcing compliance and audits, investigations, and FCA litigation relating to FSS contract issues.
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Morgan Lewis’s lawyers help companies handle government contract issues that arise during the contract life cycle. We assist companies by preparing them before a solicitation is even issued. We help clients make strategic decisions about entering government markets at the prime or subcontract level and through different channels and partnerships. We also advise small and large businesses about small business socioeconomic preferences, as well as the markets and strategic arrangements under which such preferences are most beneficial. Our lawyers also advise clients on obtaining grants as well as compliance issues that arise under federal government grant programs.
We counsel clients on presolicitation agency contacts, including responses to requests for information and submission of unsolicited proposals. The best way to help a company involves requests to an agency to modify inappropriate or unfair solicitation provisions before submitting proposals or to file a preaward bid protest to correct solicitation defects. We also help prepare proposals, assess a company’s ability to comply with proposed contract terms, devise strategies to preserve intellectual property and other rights through proposal submission, and negotiate contract terms and conditions.
We advise clients on Federal Acquisition Regulation (FAR), Defense Federal Acquisition Regulation, and other agency FAR supplement and regulatory requirements, including the following:
We also counsel on issues associated with classified efforts, including security clearance matters implicated by the National Industrial Security Program Operating Manual.
Our government contracts team has experience working with our corporate business transactions colleagues in advising clients engaged in mergers or acquisitions of government contractors on the unique risks associated with such transactions. We also counsel clients that are targets in such deals. We work seamlessly to assess risks, provide appropriate coverage in deal documents, and identify potential preclosing and postclosing remediation issues.
We advise clients on related issues, such as contract novations and the assignment of payments. Our lawyers counsel both non-US buyers and US domestic acquirees through the Committee on Foreign Investment in the United States and have obtained clearance of transactions in the network infrastructure, defense, shipyard, chemical and biological threat detection, and software industries, among others.
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