Practice Leader: Michael A. Hordell
Pepper Hamilton LLP has more than 20 attorneys with broad experience in government contracts law. Our government contracts lawyers’ experience includes audits, bid analysis and preparation, compliance counseling, bid protests, litigation and alternative dispute resolution, technical data issues and homeland security issues. As needed, the government contracts group partners with colleagues in related practice areas such as corporate, bankruptcy, environmental regulation, labor and employment, intellectual property, white collar criminal defense and tax. Our goal is to provide each client with top-quality, efficient and practical legal advice to help ensure that all elements of the client’s business comply with government regulations.
Our attorneys have experience in all aspects of civil and criminal disputes concerning government contracts, including those that require Top Secret/Sensitive Compartmentalized Information access. We work with clients to identify issues early, dealing with potentially sensitive concerns on legal and business levels. We assist clients in designing, implementing, reviewing and improving compliance procedures to minimize problems in the future. We also help clients with proposal preparation, and in drafting solutions and conducting procurements or procurement functions when dealing with the government.
We advise and assist clients in responding to pre-award and post-award audits and investigations by the Defense Contract Audit Agency, agency inspectors general, and other federal and state auditing agencies. We participate in audits as an integral part of the contractor’s team to improve the efficiency and quality of client audit responses and to minimize expense and disruption.
We represent many clients who protest solicitation and award improprieties. We also assist clients in defending contract awards against protests. We represent clients concerning protests in all forums, including the U.S. Government Accountability Office (formerly the General Accounting Office), the United States Court of Federal Claims, and the Federal Aviation Administration’s Office of Dispute Resolution for Acquisition (ODRA).
Government contractors are subject to numerous laws, regulations and executive orders about employment practices, such as equal opportunity, affirmative action and drug-free workplace laws. In addition, especially for small businesses participating in federal programs, regulations may affect corporate issues. Our attorneys work to ensure that all aspects of the client’s business, including but not limited to corporate and employment issues, comply with the laws applicable to government contractors.
Codes of Conduct and Business Ethics
Companies that conduct business with the government need effective codes of conduct and business ethics and compliance programs. For more than 25 years, our attorneys have assisted clients of all sizes—from small businesses up to Fortune 100 companies—with worldwide operations and in evaluating and implementing their codes and compliance programs. We have worked with clients in most industries to address issues vital to an effective and efficient program of business conduct and ethics. We have reviewed existing programs and helped clients enhance their programs to address emerging issues and stay abreast of best practices.
Our attorneys are experienced in the presentation of government contract claims, including acceleration, breach-of-contract, changes, delays and related costs, pricing and scheduling issues. Our goal is to obtain an early resolution for our clients. We formulate effective discovery and trial preparation plans so that disputed facts and issues are clarified and continuously assessed as the case moves toward settlement or trial. As part of our claims practice, we frequently appear before the various Boards of Contract Appeals and the U.S. Court of Federal Claims.
Commercial Products and Services
Pepper represents many suppliers of commercial products and services who sell directly to federal, state and local governments, or through single-award, multiple-award and federal supply schedule contract programs.
Pepper’s Construction Group practices almost exclusively in the interrelated areas of construction, surety and government contracts law. The group’s experience spans the full range of legal tasks that arise in these areas, including:
- drafting and negotiating construction management, construction services and design contracts
- advising clients during projects on avoiding claims or mitigating them
- arbitrating, mediating or litigating the complex, multi-party disputes that arise after contract execution, or resolving them through mini-trials or other alternative dispute resolution procedures (e.g., due to unforeseen conditions, delays and disruptions, extra work, alleged defects or failures to conform to specifications, warranty issues, terminations for convenience or breach, assessments of liquidated damages, and disputes involving multiple prime contractors and sureties of co-primes)
- bid dispute issues.
Many government contractors require advice in the critical area of rights in inventions, proprietary drawings, data and computer software that are used, created and/or modified by the client during its performance under a government contract or grant. We are experienced in this area, including recommending measures to protect pre-existing technology developed at private expense, and appropriate non-disclosure agreements and reservations of rights.
Drafting Winning Proposals, Counseling and Other Business Issues
We assist clients in evaluating and responding to solicitations to maximize the likelihood of success, and review clients’ proposals, bids or quotations to ensure responsiveness. In addition, we assist clients in drafting and implementing compliance programs and developing company-wide procurement policies and procedures. We best serve our clients by addressing procurement, contract, subcontracting and other issues before they arise. Before the submission of a proposal, bid or quotation, our attorneys review solicitations and related documents for unusual contract risks, ambiguities, rights in technical data and computer software issues, and compliance problems.
Environmental Matters and ‘Green Procurement’
Our government contracts attorneys work closely with our Environmental Practice Group. For example, we are advising a hazardous waste remediation company on the resolution of current and future disputes with the government.
Our Environmental Practice Group attorneys, among other things, advocate public policy positions before federal and state administrative bodies for companies and industrial trade associations, including the issues raised by the Office of Federal Procurement Policy’s green procurement initiative. Together, the Government Contracts and Environmental Practice groups provide comprehensive counseling and strategies on environmental matters for businesses operating in the government sector. Our team of multidisciplinary attorneys are working with clients to address increasing regulatory, contractual and business requirements for “green” products, services and processes.
Export Controls and Economic Sanctions
Pepper attorneys represent foreign and domestic companies on export control issues and economic sanctions before the Directorate of Defense Trade Controls of the U.S. Department of State, the Bureau of Industry and Security of the U.S. Department of Commerce and the Office of Foreign Assets Control of the U.S. Department of Treasury. We regularly advise clients both on how to comply with the complex laws in these areas and on how to handle those situations in which they have failed to comply. We have extensive experience providing counseling and representation on such matters as commodity jurisdictions, classifications, licenses, compliance programs and audits, as well as voluntary disclosures and enforcement actions.
False Claims Act, Fraud and Corruption
Our attorneys include former assistant U.S. attorneys, OIG attorneys, GAO attorneys and federal agents who are experienced in civil and criminal litigation involving false claims, federal fraud and corruption laws, including the whistleblower protection provisions. We conduct internal investigations, handle voluntary disclosures, and represent companies and witnesses in administrative, civil and grand jury investigations. We know the issues of parallel proceeding and collateral consequences that arise during these matters, and work with clients to identify and successfully resolve them. The practice also involves the litigation of these matters during civil and criminal jury and non-jury trials.
We represent public grantees and contractors working under programs funded by the Department of Transportation, the National Institutes of Health, the Department of Justice, the Department of Housing and Urban Development and other federal agencies. Our attorneys are well versed in the Office of Management and Budget circulars governing the administration of such grants.
Foreign Corrupt Practices Act
Our attorneys have been addressing issues under the FCPA for more than 30 years. Indeed, one of our partners, as a prosecutor in the mid-1970s, brought a series of prosecutions relating to foreign corrupt payments that led to the passage of the FCPA. We have advised clients concerning the development and implementation of FCPA compliance programs and have conducted compliance reviews involving client activities in more than 100 countries. We have conducted internal investigations and represented clients in disclosures to the Department of Justice and the Securities and Exchange Commission, and have negotiated declinations and deferred prosecution agreements. Pepper lawyers have lectured and published extensively on the subject.
The federal government has increased purchases of goods and services to support enhanced Homeland Security efforts to strengthen law enforcement and intelligence agencies in the war against terrorism. Our attorneys provide legal and business counseling to numerous contractors that provide products and services to all levels of government. Pepper helps these clients to comply with the new statutes and to understand how new legislation affects their businesses as they explore new markets and develop proposals to address federal, state and local needs in this area.
Information Security and Privacy
We assist government contractors in complying with the myriad information security and privacy laws that affect how they receive, process, store and transmit personally identifiable and other sensitive information. These laws include a growing number of state laws pertaining to data security, notice of breach, and privacy. The group also helps contractors comply with requirements under the Federal Information System Management Act (FISMA), and overseas legislation modeled under the European Union (EU) Data Protection Directive and the Asia-Pacific Economic Cooperation (APEC) Privacy Principles. The security and privacy part of our team is led by an attorney who is also a Certified Information Systems Security Professional (CISSP) and Certified Information Privacy Professional (CIPP), which empowers our team to provide clients with a deeper analysis of the information, security and privacy challenges that complex multinational companies face. We also bring knowledge of the best practices in order to address them.
A challenging task for contractors is determining which laws apply to them and then creating a compliance program that responds to these laws. Pepper has created a “Unified Approach” to security and privacy compliance which helps contractors identify applicable laws, assess security and privacy risks, select appropriate safeguards and implement a comprehensive enterprise-wide compliance program.
Our attorneys help clients formulate plans and strategies affecting the legislative process, authorization and appropriations. We have successfully assisted clients with legislative efforts that have resulted in significant, long-term benefits to their industry in general or their business in particular.
Pepper attorneys track the Office of Management and Budget’s revisions to Circular No. A-76 to better inform our clients concerning public-private competition. Our counseling covers what the federal agencies will be able to do, and their responsibilities under the revised circular and additional Federal Acquisition Regulation requirements, including the ability to conduct an expanded best value cost-technical trade-off source selection process.
We advise small, minority-owned and women-owned businesses about the programs offered by the U.S. Small Business Administration, including the Small Business Innovative Research Program and the Historically Underutilized Business Zone program. We assist our clients in strategically identifying, applying for and using these program benefits and other preferences for small businesses, and assist large-business clients in formulating small business subcontracting plans.
Statutory and Regulatory Guidance
We help clients interpret and respond to statutory and regulatory requirements. To successfully meet our clients’ 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 statutes, regulations or directives to better serve client interests.
Suspension and Debarment
Our attorneys have successfully assisted clients in preventing a suspension or debarment. We have negotiated agreements in lieu of debarment and worked with the agency and client to remedy the specific problem and implement safeguards to ensure clients remain presently responsible.