• EMAIL
  • PRINT
  • PDF
  • Bookmark and Share

Government Contracts & Export Controls

McCarter & English provides comprehensive representation in connection with the most complex of government regulations (ITAR, EAR, FAR, DFARS, FCA, and OFAC sanctions programs). Strategically placed in our Washington, DC, Newark, New York, Hartford and Boston offices, our Government Contracts & Export Controls Group attorneys bring the training, experience, and business savvy needed to help our clients navigate the thicket of federal, state, and municipal government contracts regulations. Our attorneys develop and implement the most robust and proactive corporate compliance programs intended to satisfy the most demanding of statutory and regulatory requirements.

Our attorneys are at the forefront of the ever-changing legislative, regulatory, judicial, and administrative environment of this complex field, and advise clients on these issues in defense of investigations, civil and criminal proceedings, and suspension and debarment actions. Our experience comprises a wide range of industries including Defense and Aerospace; Federal Research; Education; Healthcare; Construction; Transportation; Information Technology and Software. Our clients range from small start-ups seeking federal assistance in research and development to large defense and aerospace companies involved in major military programs.

We bring to bear experienced attorney teams to provide multi-disciplinary and multi-jurisdictional representation of individuals and corporations in administrative, civil and criminal proceedings. We undertake matters with the singular goal of exceeding client expectations. 

Audits & Investigation

Our attorneys have broad experience in organizing, advising and assisting contractors in responding to pre-award and post-award audits and investigations by the Defense Contract Audit Agency (DCAA), various agency Inspectors General, and other federal and state auditing agencies. We participate in audits as an integral part of the contractor's audit response team to improve the efficiency and quality of client audit responses and to minimize their expense and disruption.

Bid Protests

Our attorneys represent clients throughout the country in protests of solicitation and award improprieties and errors. We also assist clients in defending contract awards subject to protest including alleged violations of the Competition in Contracting Act (CICA), Federal Acquisition Regulation (FAR) and other related federal statutes and agency regulations. Our attorneys handle protests in the U.S. Government Accountability Office (GAO), federal agencies, the United States Court of Federal Claims, state administrative agencies, and federal and state courts throughout the United States.

Claims Preparation & Litigation

Our attorneys have significant experience in the analysis, evaluation, and presentation of government contract claims including breach of contract, changes, defective specifications, defective government property and equipment, delays, accelerations, suspensions, value engineering, superior knowledge, commercial impracticability, impossibility and related cost, pricing and scheduling issues. Disputes that cannot be settled promptly by mutual agreement require case-specific management to either induce settlement or to prepare for trial. Our attorneys formulate an effective discovery and trial preparation plan so that disputed facts and issues are continuously assessed as the case moves toward trial. We regularly appear before state and federal courts, the United States Court of Federal Claims, the various Boards of Contract Appeals, the American Arbitration Association and other administrative tribunals.

Commodity Jurisdiction

We counsel clients on Commodity Jurisdiction (CJ) procedures for existing, new or redesignated articles or service. A CJ procedure can help clients streamline inventory and product catalogues and reduce confusion among different parts of, or personnel within, the company. The CJ procedure is an essential first step in any meaningful compliance process. In the defense trade, properly used CJs are key to building customer confidence as to what is being bought and incorporated into their end-item. For clients whose portfolios run the spectrum from defense to commercial, a CJ is used to eliminate concerns regarding the flow of military technology to commercial applications and increase confidence in high-stakes transactions. A CJ request may assist in eliminating unfair practices and incorrect claims by competitors. Most importantly, the CJ determination will allow for confidence and planning concerning any particular issue.

Construction & Infrastructure

We maintain a diverse practice on behalf of construction industry clients including public and private owners, developers, contractors, subcontractors, suppliers, architects, engineers, construction managers, design builders, sureties, insurers, and financing institutions. Our attorneys focus on innovative problem solving for clients. Many of our attorneys have hands-on construction experience in addition to advanced degrees in engineering or architecture.

A major component of our government contracts practice is the presentation and defense of claims for changes, defective work, suspension, interference, defective specifications, delay, acceleration, superior knowledge, commercial impracticability, and related cost, pricing and time issues.

Our attorneys also have extensive trial experience with safety-related design and construction, both nuclear and non-nuclear, and an understanding of the role of quality assurance and quality control in the construction process.

Contract Pricing

We help contractors respond to a broad range of pricing issues arising under fixed-price, cost-reimbursement, time-and-materials, and share-in-savings government contracts, including:

  • Advising clients about whether and how to provide cost or pricing data to the government 

  • Assisting clients to prepare cost proposals for submission to the government

  • Counseling clients in connection with defective pricing and disclosure issues 

  • Advising clients regarding price reduction clause in GSA Schedule contracts 

Contractor Compliance

Government contractors are held to different standards than those in the commercial marketplace. Understanding and complying with those government-specific standards can be a daunting task, even for experienced government contractors. Our attorneys have assisted clients in the following areas:

  • Ethical requirements (such as those relating to gifts and gratuities) hiring of former government officials, conflicts of interest, and lobbying disclosure

  • Socio-economic requirements (Equal Employment Opportunity reporting, small and disadvantaged business subcontracting plans) 

  • Corporate compliance programs and audits 

  • Pricing compliance (defective pricing, most-favored customer pricing, price adjustment clauses) 

  • Cost accounting (unallowable costs, conformance to accounting standards) 

  • Industrial security, including personnel and facility security clearances

Cybersecurity

The Federal Acquisition Regulations (“FAR”) and its supplements, such as the Department of Defense Federal Acquisition Regulation Supplement (“DFARS”), impose upon federal contractors specific requirements regarding how data, including cloud computing, must be stored and transported relative to a government contract. Non-compliance can lead to cure notices, adverse past performance determinations, fee reduction penalties, and possible civil False Claims Act (FCA) implications – as well as reputational risk and responsibility issues – all of which could lead to substantial monetary penalties, including the loss of awards.

A key element of McCarter & English’s comprehensive compliance review is an examination of the company’s cybersecurity stance as it relates to defense contracts and subcontracts. McCarter & English examines cybersecurity preparedness in line with the requirements set out in the FAR, DFARS, and NIST Special Publications to create government contract specific supplements to any existing data or information security plan. If no such plan or policy exists, McCarter & English assists in creating a comprehensive plan inclusive of all cybersecurity needs and requirements, commercial and government alike.

As needed, and in light of the highly technical nature of the cybersecurity compliance examination that must be performed, McCarter & English is also prepared to team with a host of dedicated and experienced cybersecurity technical services vendors to ensure the most robust assessment possible while retaining the elements of attorney-client privilege.

The area of cybersecurity is dynamic and additional requirements and changes to these now-existing regulations are expected as the government promulgates new regulations to keep pace with advancements in technology. Accordingly, vigilance is mandatory when assessing the regulatory landscape of cybersecurity.

Debarment & Suspension

Our attorneys have extensive knowledge of the regulations, guidelines and policies that govern suspension and debarment of federal government contractors and grant recipients by officials within the military and civilian agencies. Our attorneys regularly counsel clients on ethics and compliance programs and appropriate disclosures which are seen as mitigating factors in suspension and debarment decisions. Our attorneys have appeared before suspension and debarment officials on behalf of clients.

Employment

We help government contractors navigate the myriad non-discrimination and affirmative action requirements of the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) and comply, where applicable, with the wage rates and fringe benefit standards imposed by the Service Contract Act and the Davis Bacon Act. We prepare affirmative action plans and compliance policies and help government contractors prepare for OFCCP compliance reviews, preventive audits, and other government investigations. We also advise government contractors on traditional employment and employment-related contract issues such as discrimination and harassment claims and investigations, wage and hour compliance under the Fair Labor Standards Act, non-competition clauses, and trade secrets.

Export Controls Investigations

Our attorneys lead and manage some of the most sensitive responses to government investigations of alleged ITAR, EAR and OFAC violations. Compliance issues and license requirements may be triggered even if products are not exported from the United States, such as when controlled data or services are shared with foreign persons (even if they are located in the United States). Our attorneys identify and resolve potential ITAR, EAR and OFAC violations and assist clients in preparing robust responses.

Export Controls Licensing

Our attorneys help clients prepare agreements (TAA, WDA, MAA, FMF DCS) and license applications for both tangible and intangible exports controlled by the ITAR or EAR. We have assisted clients with a variety of export authorizations compliant with recent Export Control Reforms (ECRs) and advised them on how BIS and DDTC are reviewing license applications in the post-ECR era. We advise clients on how they can manage the impact of ECRs and provide risk-based assessments of their existing licenses, agreements and CJs based on recent reform outcomes. We counsel clients on how to respond to ever-evolving requirements and help them develop well-planned post-ECR licensing strategies.

False Claims Act (FCA)

The False Claims Act (FCA) continues to be one of the most heavily litigated areas in federal and state courts and requires a high level of sophistication and understanding to achieve a successful result. We have significant experience handling qui tam False Claims Act matters for companies of all sizes. These matters are typically complex and involve specialized industry knowledge. Our attorneys all have the level of experience necessary to deal with government prosecutors and regulators in these high stakes matters. We have experience defending FCA cases pertaining to a wide variety of government contract and health care issues. Our representation encompasses all aspects of the criminal process from grand jury investigations to post-indictment proceedings, including arraignment, trial, sentencing, appeal and post-conviction remedies.

FOCI and CFIUS

We assist clients with the analysis and preparation of filings with the Committee on Foreign Investment in the United States (CFIUS), a multi-agency committee that conducts national security reviews of in-bound foreign investments. As CFIUS may block investments and force divestments of a transaction, appropriate review and submission is crucial. In addition, our attorneys are able to prepare “risk mitigation agreements” to allow transactions to proceed where national security risks may be found. In addition, if investments or transactions include government contracts, ITAR-controlled commodities or technical data, or classified information, the Defense Security Service (DSS), a part of the Department of Defense, conducts a separate, parallel process to mitigate “Foreign Ownership Control or Influence” (FOCI). Our attorneys assist clients in reviewing potential issues and making determinations whether formal notice to CFIUS or DSS is required.

Investigations

Our attorneys have substantial experience guiding government contractors and grant recipients through investigations conducted by governmental auditors and investigative agencies as well as the U.S. Department of Justice on matters involving procurement fraud, defective pricing, overbillings, ethics violations and export control violations. We conduct internal investigations, work with outside experts, advise on voluntary and mandatory disclosures, and represent companies and individuals in connection with administrative, civil and criminal proceedings. Our attorneys are experienced in crisis management and the design and implementation of corporate compliance programs.

Federal Assistance & Grants

We represent public grantees and contractors under federal assistance programs. Our attorneys are well versed in the applicable cost principles and standards and Office of Management and Budget ("OMB") circulars governing the administration of such grants, as well as providing counsel regarding technology transfers to or from the government, research regulatory compliance, agreements with third-party suppliers and subgrantees, and effort reporting.

GSA & Multiple Award Schedule (MAS) Contracts

We have extensive experience in counseling companies in the government's commercial sales practices, including GSA Schedule contracts and the Department of Veterans Affairs Federal Supply Schedule contracts. We assist clients with:

  • Proposal preparation

  • Negotiation of contract terms

  • Helping contractors comply with Industrial Funding Fee, the price reduction clause and other GSA Schedule contract obligations

  • Performing internal audits of compliance with GSA Schedule contract obligations

  • Advising clients on the statutory pricing requirements under the Veterans Health Care Act

  • Calculating Non-Federal Average Manufacturer Prices (non-FAMPS) and Federal Ceiling Prices (FCPs) applicable to covered drugs

  • Helping contractors to respond to pre-award and post-award MAS contract audits by agency Office of Inspector General
    • Intellectual Property

      An important concern for government contracts clients is the government's rights in inventions, proprietary drawings, schematics, practices, data, and computer software that are used, created, or modified by the client during the course of its performance under a government contract or grant. Under complex and ever changing regulations, which differ on an agency-by-agency basis, the government is entitled to rights to technology in part or in whole developed with government funds. Determining and negotiating the rights of prime contractors, subcontractors and vendors who are contributing technology must be well planned. We provide expert guidance in this area. This includes recommending measures to protect pre-existing technology developed at private expense and appropriate non-disclosure agreements and reservations of rights.

      International Procurements

      Our attorneys regularly advise clients on the application of sometimes complex rules of origin. We help clients structure their manufacturing and sourcing plans to comply with restrictions under the Trade Agreements Act, Buy American Act, Berry Amendment, and other legislation.

      Mergers & Acquisitions

      We provide varied support services and serve as key members of the M&A team when a company with public sector contracts, grants or subcontracts is the subject of a sale or acquisition. Our services include due diligence review of existing contracts, audits of intellectual property government license rights, and drafting of pertinent clauses and disclosure schedules in the agreements memorializing the transaction. Our advice, whether to the seller or buyer, covers a range of areas including compliance representations and warranties, indemnification protections, novation and change of name agreements, assignment of subcontracts, facility and personnel security clearance transfers for classified contracts, export control issues, and FOCI and CFIUS analyses in mergers, acquisitions and divestitures.

      Pre-Submittal Counseling

      We serve our clients most effectively by recognizing, addressing and resolving procurement issues before they arise with the government. In addition, we advise clients on subcontracting relationships, teaming agreements and joint ventures. Prior to the submission of a proposal, bid or quotation, our attorneys review requests for proposals, invitations for bids, and other solicitation documentation for unusual contract risks, ambiguous requirements, rights in technical data and computer software, and for possible truth in negotiation, price reduction and related compliance problems. We review clients’ proposals, bids or quotations to ensure inclusion of all necessary information (including appropriate certifications). In addition, our attorneys assist clients in the development of company-wide procurement programs, policies and procedures.

      Sanctions

      We perform comprehensive due diligence in every merger, acquisition or divestiture where U.S. or international sanctions programs may be implicated. Our attorneys lead and manage compliance investigations for multinational clients with potential exposures in sanctioned areas. We craft and implement compliance programs and assist in the implementation of appropriate corporate restructuring to ensure that business directives adhere to OFAC requirements.

      Small, Minority-Owned, & Women-Owned Businesses

      Federal and state governments have adopted incentives in the contracting and grant programs for small, minority-owned, and women-owned businesses. Examples include the Small Business Innovative Research (SBIR) Program under which research and development monies are specifically allotted to grants to small businesses for the development of new and innovative studies, research, and technology; and the Historically Underutilized Business Zone (HUBZone) program. Our attorneys advise clients on the availability of such programs and the conditions under which they operate and assist them in strategically utilizing program benefits.

      State & Local Contracting

      Selling to state and local governments can be an important component of many of our client's businesses. However, the challenges present in selling to state and local governments are numerous and varied. Our attorneys regularly guide clients through the many facets of state and local procurement laws, regulations, and policies. Additionally, our attorneys advise public sector state and local clients on procurement-related issues, including:

      • Requests for proposals and invitations for bids involving both traditional and alternative procurement methods

      • Defense of bid protests filed by disappointed bidders

      • Public records requests

      • Litigation and dispute resolution

      • Procurement policy issues

      Statutory & Regulatory Guidance

      Our attorneys regularly assist clients in interpreting statutory and regulatory requirements and provide advice on the applicability of these requirements to procurement opportunities and contract performance obligations. To assist clients in successfully meeting their legal obligations and the government’s needs, we maintain communications with key personnel in the government agencies, recommend new regulatory interpretations, and propose changes to existing regulations in order to serve client interests.