Government Contracts

Related Professionals

Overview

In today’s evolving procurement landscape, companies doing business with federal, state and local government customers need experienced counsel to navigate complex regulatory requirements, shifting acquisition practices and an increasingly active enforcement environment – while also capitalizing on emerging opportunities in technology modernization, cybersecurity and artificial intelligence.

Whitfield’s Government Contracts Practice Group brings extensive experience in M&A, litigation and counseling to guide clients through all phases of the procurement process. We have represented national defense, manufacturing, health care, advanced technology and professional services companies on matters ranging from proposal preparation and pre- and post-award bid protests to the negotiation and litigation of contract disputes.

The practice group draws upon Whitfield’s well-known strengths in M&A and corporate transactions, litigation and leading practices – including antitrust, cybersecurity, environmental and intellectual property – to assemble sophisticated, cross-disciplinary teams tailored to each engagement. Our government contracts practitioners bring substantial experience across the full spectrum of public procurement law, with a particular focus on supporting clients through high-stakes corporate transactions, bid protests, regulatory compliance and government investigations. We work in close partnership with our clients, teaming with in-house counsel and staff to deliver efficient, high-value legal services that advance both legal and business objectives.

Experience

Our government contract lawyers provide support for corporate transactions on a variety of issues, including pre-closing due diligence and contract compliance reviews, advice on corporate restructuring, impacts on cost allowability and accounting practices, and agency contract novation procedures. In transactions involving foreign investment, Whitfield has substantial experience in assisting buyers and sellers in obtaining government approvals, including security arrangements and Exon-Florio clearance.
We advise clients on a variety of contract and subcontract issues during procurements, including the interpretation of solicitation requirements and the negotiation of teaming agreements and subcontracts. During procurements and following contract awards, Whitfield prepares and defends bid protests before the Comptroller General and in the federal courts. On extremely short notice, Whitfield can provide the focused litigation support that is essential for any significant bid protest, as evidenced by our recent successes in both obtaining and opposing TROs/preliminary injunctions.
Our lawyers have litigated before the boards of contract appeals and federal courts on claims by and against the government, and have extensive experience in preparing and negotiating contract claims arising from government actions during performance for a variety of contracts, including major system development and production contracts. This experience includes claims and disputes relating to breach, changes, constructive changes, impossibility or impracticability of performance, defective specifications, product conformity to contract specifications, latent defects and warranty, defective pricing, Cost Accounting Standards, cost disallowances and default terminations, as well as contract terminations. Amounts in dispute have ranged to hundreds of millions of dollars. In addition, Whitfield has represented numerous contractors in disputes involving prime/subcontractor relationships, joint ventures and teaming agreements.
We have represented a wide range of contractors and associations in shaping federal procurement legislation, regulations and policies. This representation has included substantive work on legislation requiring presentations to and negotiations with members of Congress and their staffs. Whitfield lawyers have also represented clients regarding numerous aspects of the Federal Acquisition Regulation and supplemental agency regulations, and proposed changes dealing with the Cost Accounting Standards, the cost principles, profit policy, “best value” procurements, rights in technical data, recoupment of nonrecurring costs, small business set-asides and subcontracting, among other issues. Whitfield has played an instrumental role in representing client interests during the implementation of the Federal Acquisition Streamlining Act and subsequent reform legislation. Whitfield tracks legislative, regulatory and policy developments in order to apprise clients of likely changes in government contracts requirements, and the Firm offers client seminars that provide an opportunity to update client personnel on recent developments and focus on issues of particular interest.
Whitfield lawyers have substantial experience in defending major contractors in Inspector General investigations, Grand Jury proceedings, and qui tam actions filed under the Civil False Claims Act. This experience includes defending against government allegations of cost mischarging, “defective pricing,” manipulation of material systems, defective quality and product substitution. A number of these investigations and fraud actions have involved allegations of damages of hundreds of millions of dollars. We have resolved such cases and the related suspension and debarment proceedings, and are experienced in handling complex issues of multiple representation of company employees.
Whitfield has prepared codes of conduct and has designed and conducted compliance reviews and internal investigations for contractors who are concerned about possible allegations concerning adherence to procurement laws and contract requirements. Our lawyers have reviewed and investigated alleged labor mischarging, material management accounting systems (MMAS), cost accounting and estimating systems and practices, inspection and testing requirements, gratuities and kickbacks, cost transfers, access to classified or procurement-sensitive information, expense report irregularities, cost or pricing data submissions, inaccurate certifications, and other contractor practices and compliance system issues. We provide advice on appropriate methods of addressing potentially inappropriate conduct while maintaining normal business relations with government and commercial customers.
We have successfully represented many contractors in suspension and debarment proceedings in avoiding the potential government-wide exclusion from contracting with defense and civilian agencies. The government will assess each case on the basis of the particular allegations of misconduct, and contractors need experienced counsel with substantial knowledge of the particular debarment procedures of the government agencies involved. Whitfield has extensive experience in handling this type of agency proceeding and in developing appropriate ethics and compliance programs that may be required to address agency concerns.
The Government Contracts Practice Group is extremely experienced in matters involving cost allowability, cost allocability and the Cost Accounting Standards. We have counseled on and litigated cases involving alleged labor charging, MMAS, estimating techniques and systems and issues relating to indirect costs. Whitfield lawyers excel in handling government audits, providing counseling on limits to the scope and conduct of government audits, and responding to and challenging audit reports.
We have special depth of experience in counseling and litigation relating to allegations of “defective pricing” under the Truth In Negotiations Act (TINA). The Firm has extensive experience in litigating against government allegations of defective pricing claims in both civil and criminal proceedings, and in avoiding such allegations through counseling on the requirements applicable to the disclosure of “cost or pricing data” to the government and the corresponding certifications. Because contractors must be especially careful in making these data submissions, the Firm provides counseling during proposal preparation, pre-award audits, post-award audits and contract negotiations. After issuance of an audit report, the Firm provides assistance in preparing an appropriate response, including factual and legal rebuttal to any allegations of impropriety. Whitfield lawyers have also been closely involved in the implementation of recent Congressional reforms to, and exemptions from, TINA.
Whitfield has extensive experience counseling government contractors on the full spectrum of cybersecurity and data rights issues arising from federal procurements and contract performance. Our lawyers advise on compliance with the Cybersecurity Maturity Model Certification (CMMC) framework, Defense Federal Acquisition Regulation Supplement (DFARS) cybersecurity clauses and NIST SP 800-171 security requirements applicable to Controlled Unclassified Information (CUI). We counsel clients on incident response planning, breach notification obligations and the preparation and negotiation of remediation plans with government agencies following cyber incidents. Whitfield also provides guidance on the assertion, negotiation and litigation of technical data rights and computer software rights under DFARS and FAR data rights clauses, including advising on the proper marking of deliverables, challenging or defending restrictive markings, and resolving disputes regarding the government's license rights in contractor-developed intellectual property. In addition, our lawyers assist clients in navigating supply chain security requirements, cloud computing authorizations under FedRAMP and the evolving regulatory landscape governing the protection of sensitive government information.
Whitfield lawyers have substantial experience in defending government contractors in investigations and litigation brought under the Civil False Claims Act, including qui tam actions initiated by whistleblower relators and matters pursued directly by the Department of Justice. This experience encompasses the defense of allegations involving cost mischarging, defective pricing, product substitution, quality and testing irregularities, subcontractor fraud, grant fraud and inaccurate certifications submitted in connection with government contracts and subcontracts. A number of these matters have involved allegations of damages of hundreds of millions of dollars. Whitfield has a proven record of resolving such cases—both at the investigative stage and in response to qui tam and whistleblower litigation—while simultaneously managing the related suspension and debarment proceedings that often accompany False Claims Act investigations. Our lawyers are experienced in handling the complex issues of conducting the internal investigations that are frequently necessary to evaluate the underlying allegations and prepare an effective defense. We also counsel clients on proactive measures, including voluntary disclosures under FAR Mandatory Disclosure Rule obligations and the development of robust compliance programs designed to minimize exposure to False Claims Act liability and to demonstrate responsible contractor conduct to government agencies.

Practices