Government contracts typically involve overlapping commercial issues; hence Burns & Levinson’s Government Contracts practice is an interdisciplinary group that combines the experience of our Business Litigation, Intellectual Property, and Science & Technology groups. We have represented many clients in connection with a wide range of government matters such as procurement, SBIR and STTR awards, responding to agency solicitations, negotiating contracts and modifications, intellectual property ownership rights, and in litigating disputes arising out of bids, awards and contract performance. Our clients include shipbuilders, high tech companies, software developers, construction companies, service contractors, and others.
Government Contracts Litigation
Our trial work before the Armed Services Board of Contract Appeals, the civilian agency boards, the U.S. Court of Federal Claims and the Federal Circuit Court Of Appeals and state courts, has required application of the special procedures and legal principles applicable to government contracts, involving elements of administrative law, procurement statutes and regulations and general contract principles.
Representative types and samples of work:
• Bid Protests
Established that a federal agency's dismissal of our client from the competitive range was illegal.
• Award Protests
Established that a federal agency's reliance on the existence of a patent to support sole-source procurement was a violation of the Competition in Contracting Act.
• Procurement Criteria Protest
Persuaded the General Accountability Office (GAO) to withhold action on a protest by all the other bidders against award to our client on grounds it was not a "small business" as defined in the federal solicitation’s award criteria. Subsequently, we won a decision by the Small Business Administration Office of Hearing and Appeals proving that our client was indeed “small,” leading to the GAO's denial of the protest and the agency's confirmation of the award.
• Mistakes in Bids
Obtained reformation of a federal contract to include a half million dollars in costs mistakenly left out of our client's low bid on construction work.
• Changes Orders and Performance Issues
Obtained revocation of a default termination and payment of our client’s contract price by proving that the government’s improper testing of computer software caused its apparent failure to meet specifications.
• Differing Site Conditions
Established that the client, a construction company engaged by the Corps of Engineers to renovate a Mississippi River dam, would recover $2.3M because the original 1930’s concrete was harder than could have been reasonably expected.
• Subcontract Disputes
Invoked a combination of equitable “reach and apply” procedures and state construction project bonding statutes to obtain a pre-trial injunction against a prime contractor’s disbursement of state payments received by it up to the amount of our client vendor’s unpaid invoices to a subcontractor. This money was then used by the subcontractor to pay the settlement reached with our client during trial.
• Establishing Rights to Intellectual Property under Government Contracts
We have assisted clients in assessing and negotiating their rights to intellectual property such as patents, copyrights, software and data.
Other General Government Contract Work
Our attorneys are experienced in many facets of government contracts including bids and proposals for financing, compliance and applicable regulations; performance, defaults, terminations, payment and debt collection, contract administration, and other applicable regulations; as well as advising on complex related issues that often arise from these contracts. They advise and counsel in:
• Bids and Proposals
Meeting responsibility criteria, including financing acceptable to the procuring agency for small, large, minority, veteran and women-owned businesses.
Compliance with procurement specifications for hardware, software, and required administrative disciplines, such as quality assurance, safety and configuration management.
Compliance with the myriad standard and specialized government contract provisions mandated by statute, the Federal Acquisition Regulations (FAR) and the various agency implementations, including development and documentation of in-house control systems such as procedures for protecting intellectual property rights, and drafting manuals and other training materials for contract administration use.
Compliance with state and federal grant processes, including budgeting and performance review.
Recommendation of appropriate action when the client is removed from the “competitive range”, or when the agency awards -- or indicates its intention to award -- to other than the low, responsible bidder.
• Government Contract Performance
Governmental remedies invoked or threatened against our clients, including default termination, no-cost termination for the government’s convenience and withholding of payment.
Compliance with the Federal Prompt Payment and Debt Collection Acts and comparable state laws and procedures.
Proper forms and procedures for claim presentation in given agencies.
Compliance by Foreign companies and their American subsidiaries in both prime and subcontractor roles, concerning negotiations with states and federal agencies and in day to day contract administration matters.
Dealing with the diverse needs and requirements of the many different governmental specialists involved -- contracting officers, auditors, contract administrators, inspectors, cost analysts, attorneys, negotiators -- and the separate and sometimes conflicting regulations they must follow.
• Government Contract Related Issues
Drafting and negotiating subcontract provisions and resolving related disputes.
Advising with respect to commercial transactions with government contract implications. ( e.g., a merger where one or more companies has issues growing out of participation in government procurements, including protection of their own and governmental intellectual property rights.)
Assuring that aspects of commercial transactions do not interfere with a company’s ability to comply with extant government contract obligations or to participate in future government procurements (e.g., destroying a company’s "small business" or other procurement-sensitive status.)
The Government Contracts Group at Burns & Levinson