Audits AND INVESTIGATIONS

W.A. Shook Law has extensive experience in representing small and large companies facing government audits and investigations, including issues relating to GSA schedule contracting, Trade Agreements Act, Anti-Kickback Act, False Claims Act, gifts, cost accounting and various other compliance requirements.  

We combine our experience in government contracts and compliance to provide clients with a comprehensive range of services throughout the audit or investigation process.  Our primary focus is to assist clients every step of the way, from preparing for site visits to responding to Department of Justice and Inspector General inquiries, requests for documents and testimony, and responding to audit findings.

CONTRACT LITIGATION

W.A. Shook Law provides comprehensive counseling and litigation services to clients involved in contracts with federal and state agencies.  Our attorneys have extensive experience with government contract litigation, including representing clients before the Court of Federal Claims and the Armed Services Board of Contract Appeals (ASBCA).

CONTRACTOR COMPLIANCE

Government contractors and subcontractors must comply with a range of complex and often confusing government-unique statutory and contract requirements and programs.  Failure to establish internal systems reasonably capable of compliance with such requirements can result in substantial penalties for the contractor, including contract termination, suspension and debarment proceedings and statutory penalties under the civil false claims act.  The attorneys at W.A. Shook Law provide compliance counseling and advice to government contractors and subcontractors across a broad range of industries and government contract types and requirements.

As of December 12, 2008, all government contractors must have a comprehensive, tailored compliance program to prevent, detect and report violations of government contract requirements.  We represent clients in developing and implementing compliance programs tailored to meet the unique terms and conditions and performance requirements contained in their government contracts.  In that regard, we help the contractor to prepare Codes of Ethics and Business Conduct, Internal Audit Plans and Training Plans. We also assist clients in the performance of internal compliance reviews and to develop and present compliance training to company employees.

Our attorneys have substantial experience in working with clients that have been accused or suspected of improper conduct on government contracts, including:

• Defective pricing

• Improper time charging

• Multiple Award Schedule (MAS) contract Price Reductions Clause noncompliance

• Procurement integrity misconduct

• Country of Origin misrepresentations

• Submission of false claims for payment

Proper and immediate attention to such allegations can often minimize the negative results.  In addition, our attorneys assist clients in responding to subpoenas issued by the various agency Inspectors General and civil investigative demands issued by Department of Justice relating to suspected noncompliance with government contracts requirements.  We also represent clients seeking to avoid suspension and debarment from government contracting as a result of such violations.

Government contractors should be mindful that the Federal Acquisition Regulation (FAR) was recently amended to implement the final rule regarding government contractor business compliance programs click here. Among other requirements, this new rule requires contractors to disclose suspected criminal fraud violations as well as violations of the Civil False Claims Act.  These changes have been correctly described as a "sea change" for government contractors for their compliance programs.  All government contractors must take immediate steps to understand this new rule and to meet its applicable requirements.  Our attorneys have already counseled several existing clients across a range of industries about how to meet their specific obligations under the new rule. 

PAYMENT ISSUES

The attorneys of W.A. Shook Law are well versed on the payment issues that are faced by contractors such as their rights and responsibilities under the Prompt Payment Act, interest penalties for late payments, and the proper invoicing practices necessary in order to receive payments from the Government.  Our attorneys also provide counseling on settling payment disputes with Government agencies, such as representing a contractor before the Armed Services Board of Contract Appeals (ASBCA) relating to a breach of contract and payment dispute with the Army. 

SMALL BUSINESS PROGRAMS

The attorneys at W.A. Shook Law regularly advise a broad spectrum of small business concerns that perform or seek to perform under special government contract set-aside programs, including:

• 8(a) Businesses

• HUBZone Businesses

• Small Disadvantaged Businesses

• Women-Owned Small Businesses

• Veteran-Owned Small Businesses

• Service-Disabled Veteran-Owned Small Businesses

• Native American Businesses

Each of these programs has its own separate rules and requirements regarding eligibility and contract compliance terms.  We work with our small business clients so that they can increase their revenue stream and accomplish their business goals while remaining eligible for the various preference programs.  In addition, we monitor on-going legislative and agency administrative efforts to modify the various programs and work with clients who are interested in having an impact on the outcome of those efforts.

In addition, we advise on how our small business clients can best work with public sector agencies in order to ensure that solicitations are drafted so as to maximize the opportunity of successful bidding.  In those circumstances where either the size of one of our clients is challenged or an award is made to an entity that does not qualify as a small business concern, we litigate the size protest before the Small Business Administration and the Office of Hearings and Appeals.  Of note, our attorneys successfully litigated the leading case on the application of SBA’s "affiliation" rule to publicly-traded small business concerns.

We regularly advise large businesses and prime contractors with respect to small business issues, including the establishment and compliance with small business subcontracting plans required by FAR 52.219-9 and subcontracting requirements that are increasingly found in major solicitations as well as the process for establishing joint ventures and teaming agreements with small business concerns.  We also provide advice to a public agencies with regard to statutory small business subcontracting requirements and streamlining small business subcontracting programs.

Bid Protests

When a federal, state or local government agency fails to conduct a procurement fairly and in accordance with statutes and regulations, a prospective contractor has the right to file a formal bid protest that challenges the government's actions.  The attorneys at W.A. Shook Law each have at least 15 years of experience representing companies in bid protests, both pre-award and post-award and have been counsel of record in dozens of bid protest actions.  We help our clients ensure that the competition is conducted on a level playing field and that the agency adheres to legal requirements in making its award. We also represent clients defend an award they received when a disappointed bidder files a protest against the award decision.

Our bid protest experience extends to all available forums, including federal agency-level protests, the United States Court of Federal Claims and the Government Accountability Office.  We are well-versed in the differences among these forums and the strategies that are necessary to be successful.  We also have significant experience at the state and local level, appearing before many state and local administrative tribunals that hear bid protests.

In addition, we have a practical working knowledge of the rules applicable to contractor debriefings and help our clients prepare an effective debriefing strategy.  After the debriefing, we are often better able to provide our clients with advice as to whether a protest might prove successful and, if so, the specific types of government corrective action that might follow.

Prior to filing a bid protest, we work with clients to develop an overall strategy intended to result in the award of a contract rather than just "winning" a bid protest.  We focus on the client’s goal of meeting the government customer’s needs and help develop a strategy that can result in increased business rather than just litigation.  This may include discussions with the government to address an issue without resorting to legal action, or it may include forms of Alternative Dispute Resolution.  Whatever course is taken, our focus is on helping our client use the bid protest procedures to protect its rights and help it successfully pursue government business opportunities.

INTELLECTUAL PROPERTY

The attorneys of W.A. Shook Law have extensive experience in assisting clients in protecting their intellectual property rights when contracting with government agencies.  We regularly counsel clients to help them understand and protect their intellectual property rights in data, technical data, software and inventions.  We also frequently negotiate intellectual property provisions and license agreements directly with the government on behalf of our clients.

MERGERS & ACQUISITIONS

W.A. Shook Law brings together a comprehensive set of legal skills when assisting clients and other law firms engaged in asset sales and purchases as well as mergers and acquisitions involving government contracts.  Because the performance of government contracts requires careful compliance with a multitude of unique federal and state laws, executive orders, and contract terms and conditions, companies must identify and ensure that the prospective seller has properly performed its government contracts.  We also work with buyers and sellers to assess the anticipated post-close value of the government contracts, including the potential loss of small business set-aside contracts and the integration and compliance costs resulting from the acquired government contracts.

Potential buyers should be aware of the December 2008 Federal Acquisition Regulation (FAR) rule specifying new contractor ethics and disclosure requirements.  This rule makes it even more important for the buyer to gain a complete understanding during due diligence of the seller’s systems and controls for government contract compliance, so as to avoid unanticipated post-closing disclosures and liabilities relating to the acquired government contracts.

Pre-Closing Due Diligence

Our attorneys have developed a comprehensive due diligence checklist unique to government contracts, based upon decades of experience working on government contracts acquisitions.  The checklist covers seven broad areas including:

Procurement Law Compliance

• This category includes a compliance check on 15 unique laws applicable to government contracting covering pricing disclosures pursuant to the Truth in Negotiations Act, the proper designation of products pursuant to the Buy American Act and Trade Agreements Act, as well as meeting a variety of socio-economic requirements. This category also includes a review of compliance with security regulations applicable to the performance of classified contracts and the maintenance of a facility clearance by companies

Contract and Proposal Files

• This category includes a review of closed, current, and pending government contracts and subcontracts. Issues reviewed include certifications and representations, performance issues, assignments of contract proceeds and past performance ratings

Financial Audits, Pricing, and Cost Accounting

• This category is particularly important for companies with cost-type contracts and General Services Administration (GSA) Multiple Award Schedule (MAS) contracts, and covers audit issues and dealing with government audit agencies including the Defense Contract Audit Agency and the various Inspectors General. The review includes direct and indirect rate issues, overhead rates, forward pricing rates, cost accounting system compliance, time-charging and time card procedures, commercial sales practices disclosures, the disclosure of certified "cost or pricing data" and "information other than cost or pricing data." When appropriate, we engage and work closely with accountants specializing in pricing and cost issues unique to government contracts

Litigation and Other Disputes

• This category includes a review of possible, threatened, and on-going disputes, claims, suspension and debarment proceedings, and bid protests. This category includes subcontractor claims and other contractual dispute issues

Intellectual Property

• This category includes a review of the unique and often complicated requirements associated with technical data rights, software licenses, trade secrets, patents, and copyrights—whether developed during the performance of a government contract or licensed as part of a government contract deliverable. The review includes procedures used to identify intellectual property, marking and disclosure procedures, march-in rights, and licensing and intellectual property protection procedures

Post-Closing Novation

In addition to assisting with the acquisition and sale of government contracts and government contracting entities, the attorneys at W.A. Shook Law can assist clients and other law firms with the post-closing process of novating the acquired contracts to the new company.  This process includes both properly structuring the definitive agreement to clearly identify the parties’ respective "post-close" obligations and ensuring a timely submission of required documents and working with the lead government agency to ensure timely approval.
 

BIODEFENSE

The field of biodefense is one of the fastest growing and most complex areas in government contracting. The growth of the industry has stemmed from the government’s heightened focus on the security of our nation and defense against chemical, biological, radiological and nuclear weapons. This government focus resulted in the passage of the Project BioShield Act of 2004 (BioShield), with $6 billion in funding specifically for biodefense projects.

The attorneys at W.A. Shook Law have extensive experience in biodefense issues, having practiced in this area since BioShield became law in July 2004.  We provide services to clients in the biodefense industry on a regular basis, including:

• Assisting prospective contractors in responding to complex biodefense requests for proposals (RFPs) and advising clients on biodefense-unique RFP requirements

• Establishing government compliant systems for new market entrants

• Counseling existing contractors on contract administration issues and requirements under large biodefense contracts

• Representing biodefense contractors in protests and claims against the government

CONTRACTING PROCEDURES

The attorneys at W.A. Shook Law provide a broad range of services to help companies, large and small, obtain and perform government contracts, while at the same time reducing contract compliance risk and maximizing protection of key company assets and interests, including:

• Advising contractors about government competition requirements including streamlined acquisition processes, limited competition, sole source procurements and brand name or equal requirements;

• Drafting and helping to negotiate contract terms and conditions, including determining applicable Federal Acquisition Regulation (“FAR”) and agency FAR supplement clauses for prime contracts, subcontracts, reseller agreements and distributor agreements;

• Counseling contractors on the proper and strategic use of FAR Part 12 contracting procedures and commercial items terms and conditions;

• Advising contractors how to maximize the protection afforded their intellectual property rights in pre-existing and newly developed intellectual property when performing government contracts;

• Drafting and providing assistance to contractors to develop appropriate and effective codes of business ethics and conduct and FAR compliant compliance systems and procedures;

• Assisting contractors in connection with government responsibility determinations;

• Advising contractors and subcontractors on the proper completion of representations and certifications; and

• Assisting contractors on both routine and unusual issues of contract administration and audits, including administration of General Services Administration (“GSA”) and Department of Veterans Affairs (“VA”) Schedule contracts.

MULTIPLE AWARD SCHEDULES

The Multiple Award Schedule (MAS) contract program administered by the General Services Administration (GSA) - and the Department of Veterans Affairs (VA) for medical products - is the leading contract program for the sale of commercial item products and services to the federal government.  Total MAS contract sales in FY 2010 exceeded $38 billion.  While MAS contracts represent a substantial business opportunity for commercial item contractors, MAS contracts contain unique and frequently misunderstood terms and conditions that create enhanced compliance risks and challenges for contractors, including:

• "Current, accurate and complete" commercial sales practices (CSP) pricing disclosures

• Price reduction obligations under the Price Reductions Clause when prices are reduced to the negotiated basis of award

• Trade Agreements Act (TAA) certification regarding product country of origin

• Industrial funding fee (IFF) payment requirements

• Sales of products and services not approved for MAS contract sales

• Employee qualifications for labor categories sold through the MAS contract

In recent years, numerous MAS contractors have paid substantial fines and penalties to settle allegations of noncompliance with these requirements.  Current and prospective MAS contractors are well-advised to be aware of the MAS contract program’s unique requirements and to ensure that they have the appropriate systems and procedures in place to meet these requirements.

The attorneys at W.A. Shook Law have extensive experience in all areas of MAS contracting, including regular assistance on MAS contract audits performed by GSA’s Office of Inspector General (OIG) and the VA OIG, as well as in responding to subpoenas issued by the Department of Justice and other investigative agencies.  We assist clients on all aspects of obtaining and performing MAS contracts, including:

• Researching and drafting CSP disclosures for each category of customer

• Negotiating the terms and conditions of the original MAS contract

• Counseling with respect to contract administration issues, including MAS leasing, pricing issues, Blanket Purchase Agreements (BPAs) and FAR 9.6 Contractor Teaming Arrangements (CTAs)

• Helping contractors to establish IT systems and to prepare tailored training courses designed to maximize compliance with Industrial Funding Fee, Price Reductions Clause and other MAS contract requirements

• Helping contractors respond to routine "contractor assistance" audits by GSA

• Helping contractors to respond to pre-award and post-award OIG audits

Training and Publications:

The attorneys at W.A. Shook Law have also lectured and written extensively about the MAS contracting program.  We offer a two-day in-house training course on "High Risk Areas" in MAS contracting.

STATE AND LOCAL GOVERNMENT CONTRACTING

While state and local government procurement requirements can present unique challenges for commercial companies, contracts with state and local government agencies can represent a substantial business opportunity.  The attorneys at W.A. Shook Law help clients navigate through the many facets of state and local procurement laws, regulations, policies and procedures.  Our attorneys have handled significant procurement law matters in most states, including many of the states with the largest purchasing budgets, such as Florida, New York, Pennsylvania, Texas and Washington.  Our attorneys have extensive experience at both the state and local government level in California, where we have developed a working knowledge of the state’s procurement law and associated processes and have represented, as outside procurement counsel, state agencies in procurement matters including the California Lottery Commission and the Department of Social Services.

We have created 50 state surveys of the laws and regulations applicable to issues of greatest interest to state and local government contractors, e.g., intellectual property, data rights, indemnity, limitation of liability, audits and public ethics rules.  These surveys help our attorneys provide efficient service to clients doing business in any of the 50 states.

Our attorneys advise clients doing business at the state and local level on a broad range procurement-related issues, including the following:

• Ethics and procurement integrity rules

• Responding to requests for proposals and invitations for bids

• Negotiation and counseling on contract terms and conditions

• Equal employment opportunity and other socio-economic laws and unique requirements

• Small and minority business programs

• Filing and defending against bid protests

• Pursuing and defending against public records act (FOIA) requests

• Contract claim litigation and dispute resolution