Practice Areas & Industries: Jenner & Block LLP

Practice/Industry Group Overview

The Government Contracts Practice advises and represents clients that sell products and services to federal, state and local government agencies. We help clients with issues involving awards of government contracts as well as those that arise during or after contract performance. The Government Contracts Practice also represents government contract clients in litigation and alternative dispute resolution.

Our work includes:

• Representing disappointed offerors and successful awardees in "bid protests" -- challenges to the award of a government contract.

• Enabling contractors to obtain the benefits of streamlined procurement rules for commercial items.

• Advising clients who wish to transfer goods, services or information to or from foreign countries on export control and domestic content restrictions.

• Counseling clients on the Government's use of "Other Transactions".

• Helping clients prepare and analyze internal policies and procedures for ethics and compliance issues faced by contractors.

• Counseling clients on unique cost allowability and allocability issues presented under government contracts, counseling on compliance with the Truth in Negotiations Act, and representing contractors in defective pricing, cost and cost accounting system claims.

• Counseling contractors on intellectual property issues -- patent and technical data rights and software licenses -- under government contracts.

• Preparing and litigating claims and resolving other contract disputes.

• Helping contractors deal with contract terminations for default and for convenience.

• Representing contractors who face criminal or contract fraud allegations brought by internal and external "whistleblowers" and the government.

• Assisting clients on the government contract aspects of mergers, asset purchases, joint ventures, teaming agreements, and other business combinations.

Our clients span the range of government contractors and include:

• Several major defense contractors, each with multiple product lines, locations, and government customers.

• Several suppliers of commercial information technology equipment who sell to federal, state, and local governments.

• A small business supplier of hardware to the U.S. Army.

• A small business supplier of aircraft maintenance and support services to the military.

• A construction firm with claims against the Army Corps of Engineers for refurbishment work at a military hospital.

• The operator of an Army Ammunition Plant in toxic tort lawsuits filed by former workers and a class action filed by nearby property owners.

Services Available

Bid Protests

We regularly represent disappointed bidders and awardees in federal and state contract award controversies before procuring agencies, the federal General Accounting Office and the Court of Federal Claims.

Companies competing for government contracts are frequently involved in bid protests, administrative or judicial proceedings brought by disappointed bidders to contest the procuring agencies' contract award decisions. Our lawyers are regularly called upon by contract awardees to assist the procuring agencies in defending the propriety of their contract award decisions. In these circumstances, we use the bid protest as an opportunity to help the client build and maintain a good relationship with its government customer. We also work with clients that improperly have been denied contract awards, to assess the merits of potential protest issues, to select the most advantageous tribunals, and then to pursue efficiently the bid protest actions.

Claims and Disputes -- GC Litigation and ADR

We have handled many claims and other contract disputes with government purchasers. Our background includes work for clients in the shipbuilding, aerospace, armament, construction and food industries.

Our clients frequently perform complex development contracts, the cost of which can be affected by the government's involvement in the development process. We have analyzed programs to identify the areas and causes of unexpected cost growth, prepared claims to recover costs for our clients, and then negotiated and, when necessary, litigated those claims. We also support our clients when they receive claims from subcontractors, analyzing the validity of those claims and the possibility of passing through valid claims to our client's customer.

Commercial Item Contracting Issues

The Government Contracts Practice advises its clients on the sale and license of commercial items and services to the federal government.

The use of the government's "commercial item" procedures is particularly important for companies who sell regularly to non-government customers and who wish to sell to the federal government, but do not wish to incur unnecessary expenses or risk loss of intellectual property rights by selling to the United States.

Cost Allowability and Allocability

We regularly counsel clients on the types of costs that can be recovered under government contracts and the proper accounting for costs incurred under those contracts. This is one of the most challenging areas in government contracts, requiring the ability and experience to interpret complex Federal Acquisition and Cost Accounting Standards (CAS) regulations and apply them to complicated factual situations in both negotiation and litigation contexts.

Careful attention to challenged costs and practices is essential. Although the amount challenged may be small, the effect when extended across a business unit can be substantial. We also assist clients with the complex government contract accounting issues associated with business combinations and restructuring.

Criminal and Fraud Allegations -- Investigations and Defense

Our attorneys defend contractors who provide goods and services to the government in the fields of shipbuilding, weapons systems manufacturing, electronic and computing devices manufacturing, and foreign sales and export controls. We are experienced in matters involving the False Claims Act, product conformance, corruption, procurement integrity, cost accounting, and defective pricing. Our attorneys have conducted numerous sensitive internal investigations, assisted clients in making disclosure decisions and in gaining entry into the DOD's voluntary disclosure program. Our attorneys have defended both corporate and individual clients who have become the subject of grand jury investigations into possible violations of one of the many complex procurement regulations routinely investigated in this highly regulated field. We have, when necessary, also defended clients through trials in federal court. In addition, our attorneys defend suspension and debarment efforts by government agencies for alleged shortcomings in compliance efforts.

Defective Pricing

The Truth in Negotiations Act imposes stringent requirements on contractors in connection with the pricing of government prime contracts and subcontracts. Our Government Contracts Practice not only counsels clients on meeting these requirements but also handles defective pricing claims and advises clients in connection with defective pricing audits and investigations.

Our work has included numerous trials of defective pricing issues as well as counseling on subcontract defective pricing and appropriate subcontract clauses to allocate defective pricing risks arising from subcontract defective pricing. We have counseled clients in the appropriate treatment of complex subcontracting situations such as, for example, the use of a single subcontract to fulfill the needs of multiple prime contracts, some of which require cost or pricing data and some of which do not.

Ethics and Compliance Issues

We have advised numerous companies on the ethics and compliance issues confronted by all government contractors.

Our attorneys have supported both large contractors with extensive government contracting experience and suppliers of commercial items, for whom many of the applicable compliance requirements differ from accepted commercial practices. Our work has ranged from advice on hiring former government employees to advice on the permissibility of the payment of commissions in foreign countries to the preparation of training materials for commercial item vendors who also sell to the federal government.

Export Control and Domestic Content Restrictions

Our attorneys advise companies on complying with export controls of military items under the International Traffic in Arms Regulations administered by the Office of Defense Trade Controls, civilian and dual use items under the Export Administration Regulations administered by the Bureau of Export Controls, and the embargo regulations administered by the Office of Foreign Assets Control. They also routinely counsel clients on compliance issues related to country of origin and domestic preference requirements, such as the Buy American Act and the Trade Agreements Act.

Government Contract Aspects of Business Combinations

We have advised numerous companies on mergers, acquisitions, asset purchases, divestments, and other business transactions, including the unique aspects of such transactions when government contracts are performed by the entities involved in the transaction.

In the past several years the Government Contracts Practice, along with the Corporate Practice, has represented government contractors (as buyers and sellers) as well as investors and bankers in transactions ranging from $30 million to several billion dollars.

The sale or acquisition of government contractors (and their businesses) present industry-specific and government contract-specific issues to corporate lawyers.

Intellectual Property Issues in Government Contracts

Attorneys in the Government Contracts Practice frequently advise clients on intellectual property issues that arise under government contracts.

In addition to "traditional" technical data rights and patent rights issues for establish government contractors, we have worked extensively with clients for whom software rights must be protected to preserve the client's competitive advantage. In the software rights area our work has ranged from protecting contractor targeting algorithms in complex military development projects to ensuring embedded software in commercial networking equipment is accorded appropriate protection by the government.

Other Transactions

The Federal Government increasingly uses "Other Transactions" -- a type of contractual authority that is exempt from many statutory and regulatory requirements for government contracts -- in developing and procuring advanced technology. Jenner & Block's Government Contracts Practice has a unique background in this area, derived from hands-on work in drafting, negotiating, and administering some of the largest Other Transactions ever awarded by the Federal Government for prototype weapons systems. We also have significant experience with smaller dollar-value Other Transactions that are used for research purposes.

Terminations

Attorneys in our Government Contract Practice advise and defend contractors in government contract termination claims and appeals.

Our termination work includes representation of large defense contractors in complex, contested appeals of government termination decisions as well as contractors who seek a "no-cost" termination as a means of ending a contractual relationship that has proved not to be in either party's interest. We defend contractors who have their contracts improperly terminated for default, counsel contractors who are threatened by the government with a termination for default, and help contractors submit monetary claims to recover costs and profit in both terminations for default and in terminations for the government's convenience.

Clients:
General Dynamics Corporation