We routinely represent and assist clients in connection with audits, regulatory and compliance counseling, procurement protests, claims litigation and alternative dispute resolution, intellectual property matters, cybersecurity, data privacy, security clearances and appeals, research and development, CRADAs, grants, cooperative agreements and OTAs. Our team collaborates with attorneys in related practice areas, including civil and criminal enforcement, corporate transactions, commercial litigation, bankruptcy, labor and employment, intellectual property, data privacy, among others, to provide seamless and comprehensive service. Our goal is to provide each client with top-quality, efficient, and practical legal advice to help ensure that all elements of a client's business satisfies applicable contracting requirements.
We assist clients in identifying issues early so that they can proactively deal with potentially sensitive legal and business considerations. We also help to design, implement, review, and improve compliance procedures to minimize problems in the future.
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. Our team participates in audits as an integral part of the contractor's team to improve the efficiency and quality of client audit responses and to reduce risk, expense and disruption.
We represent clients in procurement protest proceedings before the Government Accountability Office, the United States Court of Federal Claims, and the Federal Aviation Administration's Office of Dispute Resolution for Acquisition (ODRA). These proceedings may involve defending a contract award to the client, or challenging solicitation requirements or contract awards to others.
Government contractors are subject to numerous federal laws, regulations, and executive orders applicable to federal contracts, and to state and local contracts that are funded in whole or in part with federal financial assistance. We advise and assist Fortune 500 companies as well as the smallest of small businesses, many of which are family owned. Providing compliance advice is a core component of what we do every day. We help clients to not only understand their contractual and compliance obligations, but also to develop the policies, procedures, and validation methodologies to ensure those requirements are satisfied.
Companies that conduct business with the government need effective codes of conduct as well as business ethics and compliance programs. Clients routinely learn – sometimes the hard way – that there is no one-size-fits-all approach to developing an effective and meaningful Code of Conduct, one that truly reflects the core values of the company, its owners, directors, executives, and employees. We have worked with clients in most industries to address issues vital to an effective and efficient program of business conduct and ethics.
Capturing the contract award is just the first step in a much longer path to success that may involve performance controversies, interpretational disagreements, and disputes. Resolving these situations may require preparation of a request for equitable adjustment under the Changes clause, or the submission of a formal claim under the Disputes clause. REA's that are not mutually resolved may give rise to a claim, and claims that are not mutually resolved may give rise to claim appeals before a Board of Contract Appeals or the Court of Federal Claims. Our attorneys are experienced in helping clients assess whether they are entitled to relief (i.e., more money, more time, or other relief), preparing REA's and claims, negotiating with agency officials and, if necessary, litigating the claim appeals.
Every contract and program involves learning curve for the contractor team, (consisting of management, program managers, production personnel, accounting folks, etc.) and the government team. There is also a learning curve for the legal advisors. We believe that early engagement with legal counsel – even before a problem surfaces – is a best practice to get up to speed and be prepared when and if a controversy develops. Our goal is to put each client in the best possible legal and business position to avoid disputes from the get-go. And, if a controversy develops, we work early on to put the client in the best possible position to prevail on the merits.
We represent 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. The purchase of commercial items and "commercial off the shelf" (COTS) items are routinely conducted under FAR Subpart 12 and its implementing clauses at FAR 52.212-3, 4 and 5. We routinely advise clients on the compliance obligations and contract terms and conditions that apply to the prime contractor, as well as the requirements that are required to be flowed-down to lower tier subcontractors, vendors, and supply chain participants.
The federal government invests billions of dollars annually in research and development. These awards often involve non-procurement agreements, such as cooperative agreements, grants, and OTAs, as well as traditional procurement contracts. Regardless of the form of the agreement, these undertakings are all subject to the requirements of the Bayh-Dole Act, under which the federal government is entitled to certain minimum rights to use, practice and disclose data, and inventions developed under a federal funding agreement. In a nutshell, if the federal government paid for all or a portion of the development, it is entitled to certain rights.
The rules, regulations, and contract clauses implementing the requirements of the Bayh-Dole Act are extensive, complicated, and unforgiving to those contractors who fail to comply with the various requirements. Among other things, contractors are required to regularly consider and determine whether they have conceived or reduced to practice a "subject invention" in performance of the agreement and if so, they must timely disclose that invention to the funding agency. Contractors must also timely notify the funding agency of their election whether to retain title to any subject invention. Finally, the contractor must endeavor to pursue patent protection of any subject invention to which it elects to retain title, and include an attributional statement in the patent application.
We regularly conduct client training sessions in this highly important area of contractor compliance. We work with clients to develop and adopt best practices to ensure timely compliance with all obligations. When a client discovers that it has overlooked a requirement, thereby encumbering its title interest in a subject invention, we work with the client to help resolve the oversight and remove the encumbrance.
Our government contracts attorneys work closely with our environmental attorneys. For example, we are advising a hazardous waste remediation company on the resolution of current and future disputes with the government.
Our environmental team, among other things, advocates 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, we 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.
Our government contracts attorneys regularly collaborate with other firm practitioners – including former assistant U.S. attorneys, federal judges and federal agency attorneys, in connection with civil and criminal enforcement matters arising under, or relating to, the client's federal, state and local government contracts. These matters most often pertain to allegations of fraud, false statements, certifications and claims, kickbacks and gratuities, and unethical and intentional wrong-doing. We assist clients with routine and non-routine audits, OIG inquiries, and hotline reports. We are regularly engaged to conduct internal corporate investigations, prepare voluntary disclosures, and represent the client in its dealings with government attorneys and investigators conducting federal, state, and local government investigations – administrative, civil, and criminal investigations.
A common fallout of civil and criminal proceedings that result in a settlement or judgment, or conviction, is commencement of administrative proceedings in the form of suspension and debarment. i.e., the exclusion of a contractor for eligibility to compete for and win new government contracts. These administrative proceedings can be initiated against the contractor, one or more of its sister companies or affiliates and even its parent company, as well as individual directors, owners, officers, and employees. Our legal team has represented companies and individuals who have been suspended, proposed for debarment, and debarred from contracting before most federal agencies, and many state and local government entities.
Many of our clients, including individuals, nonprofit and for profit companies, as well as colleges, universities and hospitals, participate in federally funded non-procurement programs, such as grants and cooperative agreements. These forms of agreement are not subject to the Federal Acquisition Regulation or its many agency supplements. Rather, grants and cooperative agreements are normally subject to the common rule established by the Office of Management and Budget (OMB), 2 CFR 200, appendices I-V, as well as various agency grant rules, such as the Grant Policy Statement (GPS) issued by the National Institutes of Health (NIH), or DOD's Grant Agreement Rules (DODGAR). We have assisted and represented clients in connection with program audits, adverse audit findings and cost disallowances, grant close-out procedures, Bayh-Dole compliance, and cost accounting principles and incurred cost submissions.
FCPA is one of many anti-corruption statutes in the government's arsenal of weapons intended to combat fraud, graft and public corruption. FCPA violations are a not infrequent area of investigation for companies that conduct business overseas. In that regard, we have been advising and representing clients on FCPA matters for more than 30 years. We regularly conduct dedicated training sessions and activities tailored for the client's specific organization as a way of helping them to better monitor their own activities and those of their customers, supply chain vendors, and public officials.
We assist government contractors in complying with the constantly changing framework of cybersecurity requirements imposed on federal contractors and subcontractors. There are rules banning the use of certain software products (Kaspersky), and others banning the delivery and use of certain covered telecommunications equipment and components (the Hua Wei Ban). There are many different cybersecurity requirements, including DFARS 252.204-7012, the Cybersecurity Maturation Model Certification (CMMC) program, NIST SP 800-53 and 800-171 (and its 110 different control elements), gap analysis and POAMs, cyber incident reporting and preservation of meta data, and many others.
Our government contracts attorneys work closely with our data privacy and cybersecurity specialists to assist and advise clients on their many obligations to detect, investigate and report cyber incidents, security breaches, and data compromise.
At times a client is confronted with a problem that is not readily addressable through the normal contracting mechanisms, and in those instances it is prudent to consider reaching out to elected officials to request assistance. A simple letter or phone call from a key committee member in the House or Senate could suffice to bring about an acceptable resolution. Or, it may be necessary to ask for oversight assistance, to look inside the agency's circus tent to verify that everything is above board and legitimate. We help clients formulate plans and strategies to effectively draw upon the legislative process and legislative oversight functions.
Working with small businesses is central to our government contract practice. There are many federal set-aside programs established to benefit small businesses: the 8(a) program, the All Small mentor protégé program, women-owned, veteran owned, service disabled veteran owned, HUBZone, SBIR, and SBIC. We regularly participate in SBA size protest proceedings and appeals to the SBA's Office of Hearings and Appeals (OHA) concerning contractor eligibility and standing to participate in set-aside contracts. We work with clients to identify and establish mentor-protégé relationships, regularly provide advisory services in support of corporate transactions and deals involving the small businesses, contract portfolios, and potential impact on post-closing eligibility to participate in set aside opportunities.
Unlike competitive contracting where the lowest bidder is usually entitled to the contract award, when it comes to participating in CLASSIFED programs and contracts, no one is entitled to receive a security clearance. A security clearance is essential for those companies and individuals that wish to participate in CLASSIFIED programs and contracts. A security clearance is not an entitlement, it is a privilege, and as such the process for obtaining a security clearance is, if not onerous, cumbersome and complicated. Whether the quest is for an individual "personal" clearance or an institutional facility clearance, this is one area of federal law that is not well-suited for self-help by the individual or the company. The process of granting security clearances is more accurately described as the process for denying security clearance because security representatives and officials are actively looking for reasons to not grant a clearance.
Our team has worked with individual employees – subject matter experts and executives – to prepare their SF 86 for electronic submission (also referred to as the e-QIP form). We deploy the same level of scrutiny as DCSA representatives to identify anomalies, incomplete answers, inconsistencies, unusual incidents, misjudgments, life style peccadillos, and so on, before the form is submitted to DCSA. This allows us to address any sensitive or complicated issues in a fully transparent manner, and to prepare for any potential follow-up questions from DCSA. We also prepare the client for security interviews and review all interrogatories and draft responses before they are submitted to DCSA.
In those circumstances where the clearance has been denied or recommended for denial, we represent the client before the cognizant agency Office of Hearings and Appeals (OHA) to challenge the statement of reasons asserted for denial of the clearance, to include presentation of exhibits and witness testimony in opposition to the denial and in support of granting the clearance.
Our government contracts team works with clients in virtually every industry and sector of the national economy, including: automotive, aerospace, architectural services, construction, construction trades, infrastructure (highways, bridges, toll roads, rail, transit, rolling stock, parking facilities), computer systems (hardware, software, SAAS), engineering, facilities management, health care, life sciences, manufacturing, pharmaceuticals, shipbuilding, specialty materials, staffing and training services, modular furnishings, and many more. Our attorneys have appeared before most federal agencies, and many state and local agencies.
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Troutman Pepper Named ‘Pro Bono Partner of the Year’ by Community Legal Aid SoCal