Guiding companies through the complexities of contracting with the Government.
From commercial manufacturers and service providers to traditional aerospace and defense contractors, any company doing business with the US Government, state agencies, or foreign buyers is presented with tremendous opportunities . . . and a maze of regulations, statutes, and policies. As prime contractors or subcontractors, selling to any government supply chain is rife with regulatory landmines in this highly complex arena.
Our team of experienced Government Contracts lawyers help clients avoid trouble, resolve problems, secure opportunities, and benefit throughout the business lifecycle. By listening to our clients’ wants, understanding their needs, and applying our vast years of regulatory proficiency and business savvy, our team can adeptly and efficiently analyze, assess, and, if need be, avoid, complex government contracts issues for companies of all sizes in all sectors of industry who sell to government agencies.
Not pigeon-holed in just one area, our adaptive and multifaceted practice covers a swath of industries, including construction, defense and aerospace, education, federal research, healthcare, information technology, software, and transportation.
Clients are navigated by our lawyers through the unique challenges involved with federal, state, and municipal government contract acquisition and trade regulations, including FAR, DFARS, ITAR, EAR, and OFAC sanctions programs. Clients are provided with practical, shrewd, and dogged litigation experience in the areas of bid protests, contract claims, and False Claims Act (FCA) defense. Similarly, to avoid the risks and liabilities that can arise when working government purchasers, clients benefit from our team’s proactive development and implementation of innovative, tailored, and comprehensive corporate compliance programs to satisfy demanding statutes and regulations.
Tapping into the strengths of our national firm with international reach, clients can take advantage of interdisciplinary teams that represent individuals and corporations in administrative, civil, and criminal proceedings. Our lawyers have substantial experience guiding government contractors and grant recipients through investigations conducted by governmental auditors, investigative agencies and the US Department of Justice on matters involving procurement fraud, defective pricing, FCA, overbillings, ethics violations, and export control violations. Practiced in internal investigations and crisis management we remain at the forefront of the dynamic legislative, regulatory, judicial, and administrative environment and keep our clients and industry contacts informed on all of the unique issues in this arena.
Our Global Trade team takes the complexity out of international trade relations for importers, producers, and exporters doing business across borders. We help our clients exchange goods and services efficiently while achieving full compliance with associated laws and regulations. We offer experienced counsel for all aspects of the criminal process from grand jury investigations to post-indictment proceedings, including arraignment, trial, sentencing, appeal, and post-conviction remedies.
Our lawyers represent clients throughout the country in pre- and post-award protests of solicitations and award improprieties and errors. We also help defend 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. We handle protests in all forum, including the US Government Accountability Office (GAO), at federal agencies, in the US Court of Federal Claims, and at state administrative agencies throughout the United States.
Claims Preparation & LitigationOpen
When problems arise during performance of a government contract, contractors need to be prepared. Our attorneys have significant experience with the identification, development, negotiation, and, when necessary, litigating claims against the government. We have analyzed, prepared, and presented a vast array of government contract claims on behalf of our clients, including actions based on breach of contract, changes, defective specifications, defective government property and equipment, delays, accelerations, suspensions, value engineering, superior knowledge, commercial impracticability, impossibility, as well as related cost, pricing, and scheduling issues. Well versed in damages calculations and FAR/CAS cost allowability/allocability issues, our team can 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 US Court of Federal Claims, the various Boards of Contract Appeals, the American Arbitration Association, and other administrative tribunals.
We counsel clients on commodity jurisdiction (CJ) procedures for existing, new, or redesignated articles or service. CJ procedures 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. CJ requests can help eliminate unfair practices and incorrect claims by competitors. Most importantly, the CJ determination will allow for confidence and planning concerning any particular issue.
Contract Cost Accounting and PricingOpen
We have significant experience in leading clients through the arcane web of federal cost accounting and its frequently-litigated principles of allowability, allocability, and reasonableness. Burdened by 52 separate, specific, and exacting “Cost Principles” and the application of numerous Cost Accounting Standards (CAS), clients facing the challenges inherent in cost-type contracts can rest assured that our experienced team is able to interact and negotiate with administrators, auditors, investigators, and lawyers on such matters and to assist in the counseling and development of compliant cost accounting systems, the preparation of Cost Accounting Standards Disclosure Statements and related documents, promptly responding to audit findings, and negotiating the resolution of all forms of cost/CAS-related issues. Our team is also prepared to help clients prepare cost or pricing data disclosures and counsel clients in connection with defective pricing and disclosure issues.
Government contractors and their vendors, suppliers, and subcontractors are held to different standards than those in the commercial marketplace. Understanding and complying with shifting government-specific standards is vital to avoiding risk and liability and is a daunting task, even for experienced government contractors. Our lawyers have assisted with the gamut of compliance-related efforts, including conflicts of interest, lobbying disclosures, and employment and labor concerns as dictated by the Service Contract Act. We also assist with wage issues, socioeconomic requirements (Equal Employment Opportunity reporting, small and disadvantaged business subcontracting plans), and the application and creation of Contractor Codes of Business Ethics and Conduct (FAR 52.203-13), as is required in most federal contracts. Our team is also prepared to create corporate compliance programs, respond to government audits, investigate pricing compliance, counsel on cost accounting standards and cost principles, and facilitate industrial security requirements, including personnel and facility security clearances.
Country of Origin and International ProcurementsOpen
Often the subject of enforcement, federal government contracts are rife with multiple domestic preference provisions for the sourcing of products and materials. Our lawyers are dedicated to regularly advising and counseling both US and non-US clients on the application of complex country of origin requirements. We help clients structure their manufacturing and supply-chain sourcing plans to comply with the numerous restrictions found under the Trade Agreements Act, Buy American Act, Berry Amendment, and other legislation.
US government contractors have been contractually tasked with meeting austere cybersecurity requirements to retain the information they are provided by federal agencies. Found in both civilian and defense contracts, these demanding requirements, controls, and obligations dictate keen awareness and understating by contractors and their counsel. Our team of industry leaders provides outstanding and practical advice, counseling, and solutions to ensure clients understand their obligations to protect Controlled Unclassified Information (CUI), Covered Defense Information (CDI), and Federal Contract Information, as well as implementing the necessary mechanisms if they fall victim to an attack or other form of cyber incident. Steeped in knowledge and experience with the FAR, DFARS, NIST SP 800-53, NIST SP 800-171, FedRAMP, and the host of other regulations, standards, certifications, and guidance employed by the US government, our clients benefit from our experience addressing the complex challenges surrounding the management of data privacy and cybersecurity risk.
Debarment & SuspensionOpen
When contractors are perceived to have acted in bad faith or in failing to meet their contractual obligations, actions such as suspension and debarment loom as potential death knells to the ongoing provision of federal business. Our lawyers 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. At all stages of the process, we counsel clients on ethics and compliance programs and appropriate disclosures that may be seen as mitigating factors in suspension and debarment decisions. We march our clients through such processes, defend the rights and actions of the accused, and have appeared before suspension and debarment officials on behalf of clients.
False Claims ActOpen
False Claims Act/Qui Tam Litigation & Civil Investigations
False Claims Act (“FCA”) and qui tam “whistleblower” lawsuits have increased dramatically over the past several years, posing serious challenges to government contractors and companies across a broad spectrum of regulated industries. When faced with these potentially crippling lawsuits, it is important to rely on experienced counsel who can help navigate the entire life cycle of these cases, from preliminary fact-gathering through trial or appeal. Our team has successfully defended clients during the investigative stage, often resulting in no claims being filed or favorable settlements that significantly reduce our clients’ exposure. In the event that a lawsuit is filed, defending these claims requires skillful and experienced counsel, since these lawsuits are fraught with pitfalls, and even a seemingly minor regulatory or billing oversight can present substantial liability exposure under state and/or federal FCA treble-damages and civil penalties provisions. For any government contractor or regulated entity, the potential for a government debarment can shut down a business entirely.
McCarter & English has a deep bench of multidisciplinary FCA lawyers with decades of government experience and expertise in government contracts, healthcare, antitrust, banking and financial services, employment, global trade, tax, and white collar defense and appellate practices who work closely with clients and outside experts to develop successful litigation strategies and defend “bet the company” civil and criminal cases. Our holistic approach focuses on developing comprehensive compliance programs to mitigate risk and reduce liability, advising boards and management with regard to internal investigations and government civil investigative demands, and aggressively representing our clients in the event that a case proceeds to litigation. Our team includes New Jersey’s former chief federal judge, former federal and state prosecutors, and experienced litigators who have handled FCA and qui tam cases in federal and state courts throughout the country. Our team of lawyers will vigorously defend your rights whether at trial, in the form of a procedural dismissal, or in a sensible early settlement. We keep our clients’ strategic goals in mind as we work to find efficient, preemptive resolutions that serve our clients’ business objectives.
FOCI & CFIUSOpen
We assist clients with analyzing and preparing 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. Our lawyers prepare risk mitigation agreements to allow transactions to proceed where national security risks may be found. If investments or transactions include government contracts, ITAR-controlled commodities or technical data, or classified information, the DoD’s Defense Security Service (DSS) conducts a separate process to mitigate Foreign Ownership Control or Influence (FOCI). We assist clients in reviewing potential issues and making determinations.
Grants & Federal AssistanceOpen
We represent public grantees and contractors under federal assistance programs. Our lawyers 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 & MAS ContractsOpen
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 help clients prepare proposals, negotiate contract terms, prepare for and respond to Contractor Assistance Visits and Office of Inspector General audits, and comply with General Services Administration (GSA) Schedule contract obligations, including the rigors of the Price Reductions Clause and the Trade Agreements Act. Our lawyers also advise clients on the statutory pricing requirements under the Veterans Health Care Act and calculate Non-Federal Average Manufacturer Prices (non-FAMPS) and Federal Ceiling Prices (FCPs) applicable to covered drugs.
An important concern for government contractors is the extent to which the government may demand 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, 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 demand keen planning and supervision. Our unparalleled guidance includes recommending measures to protect pre-existing technology developed at private expense and appropriate nondisclosure agreements and reservations of rights.
Mergers & AcquisitionsOpen
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, auditing intellectual property government license rights, and drafting pertinent purchase agreement clauses and disclosure schedules. Our clients receive practical advice covering 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, as needed, FOCI, CFIUS, and international sanction analyses.
Small Business Counseling and Protests: 8(a), Native-Owned, Women-Owned, Disabled Veteran-OwnedOpen
Federal and state governments have adopted incentives in contracting and grant programs for small, minority-owned, women-owned, and veteran-owned businesses. Examples include the Small Business Innovative Research (SBIR) Program and the Historically Underutilized Business Zone (HUBZone) program. Our lawyers 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 ContractingOpen
Selling to state and local governments can be an important component of your business; however, the challenges are numerous and varied. We regularly guide clients through the many facets of state and local procurement laws, regulations, and policies. We also advise public sector state and local clients on procurement-related issues, including requests for proposals and invitations for bids, defense of bid protests filed by disappointed bidders, public records requests, litigation and dispute resolution, and procurement policy issues.
Subcontracting, Teaming & Joint VenturesOpen
Government contractors rarely operate alone and independently. Subcontractors and suppliers, even competitors, play a vital role in the government supply chain. Whether you are a subcontractor or a prime contractor needing to subcontract, our team has deep knowledge and experience in properly crafting and executing such agreements. Our lawyers can ensure that decisions to team up, either as a partner or via a joint venture, not only pass government vetting, but are capable of ensuring that our clients’ wants, needs, and expectations are met.