Practice/Industry Group Overview
In the current government contracting environment, every aspect of government contract law has become more complex and demanding, whether it be traditional procurement, bid protests, capital market transactions, construction contracts, corporate compliance matters, export controls, government affairs, grants, intellectual property matters, internal investigations, international procurement matters, Homeland Security matters, privatization matters, public/private partnerships, and debarment and suspension matters. For clients and businesses involved with government contracts opportunities are ripe and hazards are abundant. Duane Morris' Government Contracts lawyers offer a full-service practice with the breadth and depth required to effectively navigate this shifting landscape in public procurement markets at the international, federal, state and local levels.
Our lawyers offer our clients wide-ranging experience ranging from compliance, government investigations, and business strategy counseling, to representation in mergers and acquisitions and capital markets transactions.
Our clients and their businesses are as diverse as the services we provide them. They come to us from a variety of industries, including information technology, healthcare, financial services, professional services, life sciences, aerospace and defense, and the U.S. government, among others. Our experience includes:
Bid Protest Litigation
Duane Morris lawyers regularly represent companies either challenging or defending procurement procedures or contract awards in bid protests before contracting agencies, the GAO, the COFC and the U.S. Court of Appeals for the Federal Circuit, including protests of classified procurements. With our experience, we are able to provide insightful counsel regarding various approaches, including structuring effective protest timelines, determining where a protest should be filed to maximize the chances for a "win" and formulating strategies for how best to defend against a competitor's protest.
Capital Markets Transactions
Our practice draws on our experience in both the government contracts and corporate arenas. Capital markets transactions can involve complex issues of federal government contracts and federal appropriations law, federal preemption, and state laws governing security interests and perfected liens. The issues may be implicated through the federal government's right to terminate contracts for convenience, exercise options and invoke set-off rights. Among other governmental rights and powers are anti-assignment restrictions, questions of agency authority and delegation, the scope of agency guarantees, the nature of the government's payment obligations, potential government defenses to enforceability, and the full faith and credit of the United States. Our experience covers advice and representation in securities offerings backed by payment streams under government contracts and both stock and bond offerings issued by government contractors.
In any economic environment, one thing is certain: all levels of government will continue to procure goods and services from the private sector. The value of these contracts is significant, and can always be a source of revenue for companies. But the hurdles that arise in securing a government contract are difficult to overcome. First, responding to specifications or a request for proposal is difficult and requires careful compliance, or the consequences can be severe. Second, many times companies feel they had the best proposal or the lowest bid, but a competitor gets the award. Third, a company may get the award of a lucrative contract and yet still have to fend off a challenge by a competitor. And, sometimes unforeseen circumstances arise. Fortunately, Duane Morris attorneys are experienced in dealing with issues at every level of government. Using an interdisciplinary approach, we can walk with clients at any stage of their quest to fulfill their goal to be the successful bidder on a government contract.
Today's corporations are subject to civil enforcement and criminal prosecution under a wide array of federal and state laws, including the Sherman Antitrust Act, the Federal False Claims Act, the Wire and Mail Fraud Acts, the Foreign Corrupt Practices Act, and securities, environmental and employment laws. In order to protect their businesses and avoid the high cost of sanctionable conduct, many companies have developed corporate compliance programs. Still other companies have not, hoping that their standards and policies alone will be sufficient deterrents to civil and criminal wrongdoing claims. Our lawyers are experienced in setting up formal compliance programs, in line with new corporate sentencing guidelines and case law that consistently reward internal accountability and impose severe sanctions on companies that failed to adopt compliance programs and enforcement procedures.
All procurement contracts of the federal government are required by Presidential policy to include a provision requiring the contractor not to discriminate against any employee or applicant on the basis of race, creed, color or national origin. Our Labor and Employment lawyers provide counsel on all types of matters that arise out of the employer-employee relationship, including advising both public and private employers about workplace conditions. We offer training on preventive practices to avoid and minimize employee claims through sound human resource practices. Our attorneys handle litigation involving wrongful discharge claims, discrimination and sexual harassment matters in federal and state courts and before administrative agencies. We also advise unionized employers about collective bargaining, arbitration, strikes, secondary boycotts, contract administration and trust fund suits, and advise non-union employers who are faced with union organizational activity.
Export Control/Foreign Corrupt Practices Act
Duane Morris assists clients in complying with the requirements of the Foreign Corrupt Practices Act (FCPA) and navigating the often complex requirements of export controls and economic sanctions regulations, including the Department of State's International Traffic in Arms Regulations (ITAR), the Department of Commerce's Export Administration Regulations (EAR) and the Office of Foreign Assets Control's (OFAC) economic sanctions regulations. In addition, our attorneys work with clients and the Committee for Foreign Investment in the United States (CFIUS) to ensure that any potential mergers and acquisitions are consistent with the national security goals of the United States. Finally, we work with clients to ensure that their products comply with the requirements of the Buy America, Trade Agreements Act and restrictions on the use of specialty metals produced outside the United States.
Duane Morris has extensive experience counseling clients with respect to the intersection of government contracts and intellectual property rights. The Defense Federal Acquisition Regulation Supplement (DFARS) provisions governing intellectual property rights are both complex and unforgiving. An act as seemingly innocuous as accepting a contract to develop a minor modification to an existing product, or failing to use an appropriate restrictive legend, can have the unintended consequence of allowing the government to use your intellectual property for competitive procurement purposes, or even to reverse engineer or decompile your proprietary computer software. We help clients navigate safely through the complex government contract procurement process to ensure intellectual property rights are securely protected. We offer counseling in responding to Requests for Proposals, including compliance with the Bayh-Dole Act, identification and protection of technical data, compliance with Department of Commerce's Export Administration Regulations (EAR), modifications to DFARS provisions and indemnification for patent infringement under 28 U.S.C. §1498. We have drafted intellectual property licenses related to patents, trademarks, copyrights and technical data rights pursuant to government contract requirements. Following successful award of a government contract we help ensure continuing compliance with federal regulations including identifying and protecting our clients intellectual property including counseling our clients in responding to Freedom of Information Act (FOIA) requests issued to the government entity awarding the contract.
Internal Investigations and Compliance
While the Sentencing Guidelines are intended to impose punishment on businesses for acting unlawfully, the guidelines also handsomely reward organizations that have taken steps to ensure compliance with the law and have acted to remedy any wrongdoing as soon as it is uncovered. The Guidelines' emphasis on early detection and reporting has prompted many businesses to conduct internal investigations or implement compliance programs. Company standards and policies alone are not sufficient to avoid liability. Only active and effective compliance programs, including internal investigations or audits, can shield a company from liability. An internal investigation thus acts as any good insurance policy does: It mitigates the negative impact of unfavorable events. In order to protect their businesses and avoid the high cost of sanctionable conduct, many businesses have retained our lawyers to conduct internal investigations and develop and monitor corporate compliance programs.
In today's world, 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, 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.
National and Homeland Security
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. Our attorneys help 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. We also introduce and discuss statutory and regulatory tools that are available to third party suppliers to reduce or eliminate liability exposure in the wake of a terrorist attack.
We represent companies, as well as federal and state agencies, relating to the privatization of government activities, organizations, and functions, including water and wastewater, environmental remediation, military housing, highways and infrastructure, and operations and maintenance. Our lawyers have drafted and negotiated applicable terms and conditions, assisted in pricing, and reviewed relevant legislation and regulations to facilitate completion of the transaction.
Public infrastructure is increasingly being designed, financed, built and managed through public-private partnerships. Duane Morris lawyers have skillfully negotiated arrangements in a variety of projects and are experienced in working with U.S. state and local governments, as well as the private sector that seek a strategic foothold in this market. The blend of experience coupled with our project finance team offers our clients a unique perspective that is often critical in forming public/private partnerships and resolving issues involving government.
Suspension and Debarment, White Collar Crime and Fraud
Debarment and suspension can have devastating consequences for companies that do business directly or indirectly with government agencies. Our lawyers have extensive experience in dealing with the full spectrum of debarment and suspension regulations and proceedings that exist throughout the federal government and at state and local levels. We have negotiated debarment agreements with, or appeared in debarment and suspension proceedings at, the U.S. General Services Administration, 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 on behalf of our clients.
Duane Morris Government Strategies (DMGS), the firm's independent lobbying and government relations affiliate, is a full service government relations firm. Unlike most other lobbying firms, DMGS works at all levels of government and on both sides of the aisle. The principals serve or have served in local, state and federal government positions and have the experience, skill and relationships to ensure that law makers in Washington understand and fight for realistic and sound oversight. DMGS has worked with a variety of clients and have been successful in lobbying key elected and agency officials to achieve objectives for clients.
As funds are available through new discretionary grant competitions related to the American Recovery and Reinvestment Act, the Department of Energy, Homeland Security, and other federal agencies, it is an ideal time to match business goals with a grant writing team that has the experience and knowledge in these fields. DMGS offers grant proposal writing services that comprising of the collaborative planning of the grant and development of the full narrative and will work to write a comprehensive package that includes detailed budgets and mission statements.