Government Contracts and
Procurement Policy – U.S. Practice
Expanded Description
In the United States, the government contracts and procurement policy practice provides
“cradle to grave” assistance to federal, state, and local government contractors in a wide
variety of regulatory, transactional, and litigation matters. K&L Gates lawyers assist
clients from Boston to Seattle and from Washington, D.C. to Silicon Valley. We
understand that our clients require real-time advice and imaginative legal and business
solutions that lessen regulatory and other compliance burdens. The team advises clients
on virtually every aspect of government contracts, including highly specialized U.S.
General Services Administration (GSA) and Department of Veterans Affairs (VA)
contracts for a variety of commercial products and services.
The firm represents Fortune 100 companies, small businesses, and startups in their
dealings with federal, state, and local governments. Our clients include technology
companies, defense and aerospace contractors, service contractors, research and
development contractors, and government suppliers of a variety of other systems and
products to civilian and defense agencies and prime contractors.
Areas of Practice
Procurement Proposal and Contract Counseling/Negotiation
Successful government contract performance begins prior to a government contract
award. The proposal phase of a procurement is critical not only for competitive reasons,
but also for establishing the scope of future government contract obligations.
K&L Gates lawyers frequently serve clients by analyzing solicitations and providing
guidance on related proposal matters. Our early-phase involvement can minimize the
risks that can come with contract award and can reduce the risks associated with contract
performance. We also assist prime contractors and subcontractors in drafting related
teaming agreements, subcontracts, reseller/distribution agreements, and the like. When
there is trouble during contract administration and performance, the K&L Gates
government contracts team provides practical advice that facilitates resolution of
performance issues.
Bid Protests
K&L Gates lawyers have a wide variety of experience in advising on protests concerning
solicitation defects or contract award decisions. We routinely pursue and defend protests
in the U.S. Government Accountability Office (GAO), the U.S. Court of Federal Claims,
and before federal agencies. Additionally, we handle protests involving state and local
governments and agencies in a variety of jurisdictions.
Claims and Disputes
In some cases, disputes concerning contract and subcontract performance are
unavoidable. When situations like this occur, K&L Gates lawyers can facilitate monetary
recoveries. Over the past three decades, we have prepared and negotiated many requests
for equitable adjustments (RFEAs) and claims under government contracts and
subcontracts. Our goals in these circumstances are the same as our clients’ – prompt
resolution, maximum recovery, and minimum expense. We recognize that a well-drafted
and supportive RFEA minimizes the prospects of litigation with the client’s present, and
perhaps, future customers.
When termination of a contract occurs, we advise contractors on termination settlement
proposals that permit them to recover incurred performance costs, reasonable profits on
the work performed, plus legal, consulting, and other expert fees incurred in preparing the
termination proposal.
K&L Gates government contracts litigators have handled disputes before a variety of
tribunals including boards of contract appeals, the U.S. Court of Federal Claims, and
similar state boards and courts. When appropriate, we utilize alternative dispute
resolution techniques such as mini-trials and other specialized processes. Our litigation
experience encompasses a diverse range of issues, including changes, cost allowability
matters, cost accounting standards compliance, defective pricing, defaults, defective
specifications, interpretations of contract language, interference by government officials
with the work, and waivers.
GSA/VA Multiple Award Schedule Contracts
Under the GSA's multiple award schedule (MAS) program, a variety of U.S. government
agencies purchase hundreds of billions of dollars of hardware, software, pharmaceuticals,
medical devices, scientific equipment, and other commercial items, as well as a variety of
information technology, consulting, and other professional services. K&L Gates counsels
both mature and emerging companies on the full range of legal issues associated with the
MAS program. Our team has more than 25 years of direct and substantial experience in
MAS matters and related federal vehicles such as government-wide acquisition contracts
(GWACs) and blanket purchase agreements (BPAs). We work in every aspect of MAS
contracting – proposal preparation, contract compliance issues such as the payment of
industrial funding fees, the Price Reductions Clause and the Trade Agreements Act, and
audits, investigations, and civil fraud claims. We have similar experience in proposal
preparation, contract award, and performance issues for analogous state and local
programs.
Audits, Investigations, Fraud Litigation, and Mandatory Disclosures
The audit and investigatory powers of the federal government are substantial and pose
great dangers for the unwary contractor. K&L Gates lawyers represent contractors
extensively in a variety of audit settings, including audits by the GSA, VA, the Defense
Contract Audit Agency, and other similar entities. In order to resolve concerns in a
prompt and effective manner, we encourage full cooperation and careful management of
audit interface and response activities.
K&L Gates lawyers also assist government contractors in a variety of matters involving
allegations of civil or criminal procurement fraud. We conduct internal investigations to
examine potential procurement misconduct and when appropriate, we work with clients
to make suitable voluntary disclosures and to resolve any issues arising from such
investigations or disclosures. We frequently defend government contractors in qui tam
(whistleblower) and other proceedings under the Federal Civil False Claims Act and
similar state statutes, as well as in criminal proceedings.
Research and Development (R&D) Contracting and Related Intellectual Property
Matters
A fundamental issue that can arise in many government contracts (as well as in indirect
government arrangements such as government reseller agreements) is the proper
treatment and allocation of patent rights, rights in technical data, and rights in software.
The urgency of this issue has been heightened by statutory and regulatory developments
such as the Federal Acquisition Streamlining Act, the Clinger-Cohen Act, other statutes
implicating intellectual property interests, and regulatory provisions implementing all of
these laws. In addition, the increasing use of special research and development
agreements such as OTs and TIAs requires focused knowledge of the range of intellectual
property provisions and rights that can be negotiated in such agreements. K&L Gates
lawyers have that knowledge and experience.
K&L Gates’ government contracts practitioners focus on dealing with the intellectual
property issues that arise in contracting with the government. In addition to its
government contracts practice, K&L Gates has a nationally recognized, robust, and fullservice intellectual property practice. As a result, the firm is eminently suited to handle
the full range of intellectual property issues that confront any government contractor.
Debarment and Suspension
Debarment and suspension can amount to a death knell for companies that do business
directly or indirectly with government agencies. K&L Gates lawyers have extensive
experience in dealing with the plethora of debarment and suspension regulations and
proceedings that exist throughout the federal government and at state and local levels.
Our lawyers have negotiated debarment agreements with, or appeared in debarment and
suspension proceedings at, the GSA, the U.S. Postal Service, virtually all of the
constituent agencies of the U.S. Department of Defense, and a host of other federal, state,
and local activities.
Ethics and Compliance Assessments and Education Training
K&L Gates understands that prevention is the best medicine. That's why K&L Gates
lawyers have designed, implemented, and conducted compliance reviews for Fortune 500
companies and small businesses alike. These programs are tailored to each client's
particular needs and assess corporate compliance with the laws, regulations, policies, and
procedures applicable to government contracting. We formulate recommendations for
new procedures, policies, and programs to promote compliance, and assist our clients in
implementing those measures.
We also offer ethics and compliance education and training. Working with the client’s
own ethics organization or with expert consultants in the field, K&L Gates’ government
contracts lawyers can prepare and deliver training to reinforce corporate ethics principles
or educate on substantive legal topics. In addition, K&L Gates government contracts
lawyers help clients develop codes of ethics and conduct to comply with Federal
Acquisition Regulation requirements.
State and Local Contracting
While state and local procurement requirements are challenging, they offer a multitude of
opportunities for public entities and private businesses. K&L Gates lawyers help clients
navigate through the many facets of state and local procurement laws, regulations,
policies, and procedures. We regularly counsel and represent both public and private
clients on state and local bidding and contract issues.
Our lawyers advise public sector state and local clients on a variety of procurementrelated issues, including requests for proposals and invitations for bids, contract
counseling, bid protests, project close-outs, public records requests, litigation and dispute
resolution, and procurement policy issues. We also represent private-sector clients doing
business with state and local entities on procurement-related issues, including
negotiations with state procurement authorities, proposal preparation contract counseling,
compliance with state and local laws and regulations, bid protests, and litigation and
dispute resolution. We assist clients in understanding other substantive legal obligations
in the state and local arenas on a variety of topics such as debarment and suspension,
procurement integrity, procurement/lobbying restrictions, and gifts and gratuities.
Due Diligence/Mergers and Acquisitions
K&L Gates' government contracts team brings together a comprehensive set of legal
skills when advising clients that are acquiring, merging with, or being purchased by
entities that hold government contracts. Because the performance of public sector
contracts requires careful compliance with a multitude of unique federal and state laws,
executive orders, and contract terms and conditions, and may contain potential liability
risks, an acquiring company must identify and ensure that the target company has
properly performed and is properly performing its government contracts. Similarly, target
companies require assistance in assessing the potential issues associated with mergers
and purchases. We regularly assist clients in a full spectrum of these areas.
International Procurement Issues
In today's global economy, procurement matters know no borders. Companies confront a
whole host of international procurement issues relating to matters such as sourcing and
manufacturing, import and export regulations, the propriety of certain payments, and
similar topics. Our familiarity with pertinent laws, such as the Buy American and Trade
Agreements Acts and the Foreign Corrupt Practices Act, as well as the laws and
regulations governing imports, exports, and foreign military sales, allows us to guide
clients as they tackle national and international markets.
Non-Procurement Agreements (Grants, Financial Assistance Agreements, CRADAs,
OTs, and TIAs)
In recent years, the federal government has become increasingly innovative in
implementing procurement arrangements. Federal agencies are now more receptive to the
use of alternative agreements that reduce socioeconomic compliance burdens, permit
flexibility in the treatment of intellectual property rights and funding, and generally
eliminate the need to comply with complex government regulations concerning cost
accounting and allowability.
We frequently work with clients in the drafting and negotiation of cooperative research
and development agreements (CRADAs), other transactions (OTs), and technology
investment agreements (TIAs). In particular, OTs are fast becoming the agreements of
choice for companies that want to work with the government in research and
development settings without the need for complex government compliance systems or
processes.
Small and Small Disadvantaged Business Issues
K&L Gates government contracts lawyers regularly advise small and small
disadvantaged businesses that perform or seek to perform under special government
contract programs, including the 8(a) Business Development Program, HUBZone
Empowerment Contracting Program, Women-owned Small Businesses, Veteran-owned
Small Businesses, Service-disabled Veteran-owned Small Businesses, and Native
American Businesses.
We advise clients on size issues, set-aside opportunities, program eligibility,
subcontracting plans, negotiations, protests, and litigation. We counsel small businesses
so they can accomplish their business goals while at the same time remaining eligible for
the various government contract programs. In addition, we regularly advise large
businesses and prime contractors with respect to small business issues, including
subcontracting plans, subcontracts, and teaming agreements.
Foreign Sourcing Restrictions
Foreign sourcing compliance, especially compliance with the Trade Agreements Act, is a
matter of great visibility within the Department of Justice and is a frequent topic of
investigation by agency inspectors general. K&L Gates government contracts lawyers
frequently assist clients with analyzing foreign sourcing requirements in solicitations
including the Buy American Act, Trade Agreements Act, and Berry Amendment
requirements. We advise clients on how to determine whether a particular product
complies with particular foreign sourcing requirements and on implementing proper
systems to facilitate compliance. In addition, we have assisted clients with obtaining both
binding and non-binding rulings from U. S. Customs regarding the country of origin of a
particular product. Lastly, we have defended numerous investigations and False Claims
Act litigation on this complex issue.