Practice Areas : Government Contracts

fighting for government contractors

Ball Janik LLP offers government contractors a unique and powerful blend of experience in strategic marketing, procurement, contract administration, counseling and litigation. We are anchored in the Pacific Northwest, maintain a strong presence in Washington, DC, and serve clients who do business throughout the United States and around the world. Our attorneys and Government Affairs professionals have worked in federal agencies and as military lawyers, procurement counselors and government litigators. We have relationships and credibility with decision-makers and can help clients navigate all phases of government contracting. Our broad industry experience encompasses aerospace, defense, engineering and construction, environmental remediation, maritime, professional services, research and development, technology and transportation.

Our clients share a desire to leverage their expertise, expand their reach and increase their profits. They turn to us for clear legal advice, personal attention and efficient problem solving to remove obstacles to their success.

Bid Protests • Claims • Commercial Business Transactions • Commercial Item Acquisition • Construction Law • Cost/CAS and Termination for Convenience • Data Rights, Software and Patents • Ethics and Compliance • Export Controls • FAR Counseling • FCPA • FOIA • False Claims • Federal Employee Hiring Restrictions • GSA Schedule Contracts • International Government Contracting • Investigations • Joint Ventures, Teaming Agreements and Subcontracts • Litigation and ADR • Novation/Government Contractor Acquisition • Prime/Subcontractor Litigation and Pass-Through Claims • Small Business Programs • State and Local Contracts • Subcontract Management • Suspension and Debarment

Bid Protests

Clients rely on us to challenge solicitation terms or contract awards. We also intervene on behalf of clients who have won a contract under protest by another contractor. We practice before the Court of Federal Claims and the Government Accountability Office. Our protests often result in the government taking corrective action, which has resulted in clients winning contracts they initially had lost. Our efforts also have led to our clients securing contract awards.

Claims

We frequently prepare and prosecute claims before the Boards of Contract Appeals and the Court of Federal Claims. We have had success achieving favorable settlements and large judgments for clients in a variety of different industries and sectors, often under creative or novel theories of recovery. We vigorously pursue settlement when it is in the client’s interest.

Commercial Business Transactions

For many of our clients, government contracts represent a smaller portion of their business than commercial transactions. We facilitate a wide variety of domestic and international business transactions, including those relating to sales, marketing, supply, service, development, manufacturing, and distribution. From structuring the deal to negotiating and closing it, we help clients accomplish their business objectives at all phases.

Commercial Item Acquisition

The U.S. government uses simplified procedures to acquire commercial items. We help clients ensure that their items are properly classified as "commercial" so that they can take advantage of these simplified procedures. As a result, our clients are able to benefit from lower costs and reduced compliance burdens in selling their items to the government.

Construction Law

We have resolved many construction-specific cases arising from government projects involving varied issues such as defective specifications, delay, disruption, constructive acceleration, warranties and differing site conditions.

Cost/CAS and Termination for Convenience

Cost issues and compliance with the Cost Accounting Standards frequently arise in many different contexts. We provide guidance to clients on contract administration issues, disputes with government audit findings and have successfully litigated these issues. We also assist clients with contract or pricing data (COPD) and Truth in Negotiations Act (TINA) issues. In a related area, we help clients maximize recovery of their costs if they face a termination for convenience by the government.

Data Rights, Software and Patents

We counsel government contractors on the unique intellectual property regime applicable to government contracts to protect them against government and private infringement of their rights. We also advise clients with respect to marking and reporting requirements to help them guard against inadvertent loss of intellectual property rights.

Ethics and Compliance

In this era of increased scrutiny and regulation of government contractors, we are adept at providing common sense yet comprehensive compliance programs, investigating potential violations and making mandatory or voluntary disclosures, if necessary. Our specific areas of experience include: procurement integrity; conflict of interest regulations; anti-boycott compliance; and the Foreign Corrupt Practices Act (FCPA).

Export Controls

We assist contractors in complying with the State Department’s International Traffic in Arms Regulations (ITAR) to obtain export licenses for defense-related materials and to resolve issues arising under the ITAR. We also help companies understand and comply with the Commerce Department's Export Administration Regulations (EAR).

FAR Counseling

The Federal Acquisition Regulations (FAR) and its agency supplements (e.g., DFARS) are constantly changing. We monitor the FAR for significant changes, alert our clients to the impact that such changes may have on their businesses, and provide business-friendly recommendations for dealing with them.

FCPA

In recent years, the U.S. government has significantly increased its enforcement of the Foreign Corrupt Practices Act (FCPA), which prohibits bribing foreign public officials and requires companies to keep accurate books and records. We have substantial experience helping companies establish compliance and training programs designed to guard against a FCPA violation occurring. We also conduct internal investigations to determine if problems exist.

FOIA

We frequently provide assistance to clients relating to the Freedom of Information Act, whether to assist with anticipated litigation or to enhance an understanding of the government marketplace. We have filed suit to get the government to release information and also to stop the government from releasing information about a client to a competitor.

False Claims

We have successfully defended clients accused of presenting false claims to the federal government. We also counsel clients on best practices to avoid becoming the target of a false claims action in the first place.

Federal Employee Hiring Restrictions

The U.S. government has established a complex array of restrictions relating to private employers hiring current and former federal employees. Violations of these restrictions can result in sever civil and criminal liability. We help companies understand these restrictions and implement policies and procedures designed to prevent a violation from occurring.

GSA Schedule Contracts

We are familiar with the processes for obtaining, managing, and renewing multiple award schedule contracts, commonly called "GSA contracts." We provide strategic advice to clients seeking to do business with the government via this contracting method. In addition, we help client avoid many common pitfalls in GSA schedule contracting, such as failing to comply with Price Reduction Clause and Industrial Funding Fee (IFF) requirements.

International Government Contracting

We have substantial experience facilitating contracts with foreign governments, via Foreign Military Sales (FMS), Foreign Military Financing (FMF), and direct commercial sales. We understand the U.S. regulations pertaining to such transactions, as well as the significant impact local law may have. To that end, we have established relationships with local counsel around the world so that we can provide up-to-date legal counsel, including insight into restrictions on using intermediaries and paying commissions in conjunction with international government contracts.

Investigations

We step in and conduct internal investigations when outside counsel is needed to determine whether a violation has occurred and provide recommendations and help the client implement those recommendations to take corrective action.

Joint Ventures, Teaming Agreements and Subcontracts

We have considerable experience drafting and negotiating joint venture agreements and teaming agreements to bring parties together to submit a proposal for a contract. In facilitating such arrangements, we ensure that our clients remain in compliance with the Small Business Administration's affiliation rules, as applicable. After the contract has been awarded, we draft and negotiate subcontracts to address the parties’ relationship during contract performance. We draft these agreements with the unique demands of each project and the needs of the client in mind in order to avoid disputes but protect the client in the event a dispute does arise.

Litigation and ADR

Our team includes attorneys with considerable experience and success in litigation and dispute resolution. Having worked for the government as trial attorneys, we know how to best represent contractors against the government. We also represent prime and subcontractors in disputes against each other in state and federal district court. Although we have achieved excellent results in contested trials, we understand that a client is often best served through expeditious settlement of disputes through mediation or other alternative dispute resolution processes.

Novation/Government Contractor Acquisition

We work closely with our corporate attorneys to structure business transactions to ensure that the government will approve the transaction through a novation agreement and allow the new corporate entity to take over the government contract. We have obtained a deviation from the standard novation terms from the government for a client buying a bankrupt company with lucrative government contracts.

Prime/Subcontractor Litigation and Pass-Through Claims

When things go wrong on a government project, disputes can arise between the prime contractor and subcontractors as often as between the prime contractor and the government. We have deep experience representing both primes and subs against each other in disputes on government projects, which gives us insight into how to maximize a client’s position in a dispute. We also have handled pass-through claims against the government when a prime and sub join forces to bring the sub’s claim against the government because the sub has been impacted by government-caused problems.

Small Business Programs

We have many small business and small, disadvantaged business clients. Through our representation of these clients, we have become experts in how agencies and the Small Business Administration apply preferences for these types of businesses and how to take advantage of these preferences – both as prime and subcontractors.

State and Local Contracts

Although the bulk of our work involves federal contracts, we often represent clients who have contracts with state and local governments. State and local procurement systems can be unique and may present more risk than a federal contract. We help clients identify these risks, and we have litigated against such governmental bodies when necessary to preserve clients’ rights.

Subcontract Management

Subcontracts issued under government prime contracts are subject to numerous requirements imposed by federal law, including requirements concerning the decision to buy, selection of the supplier, pricing, and terms of the subcontract. We advice clients on all aspects of subcontract management, such as flowing down Federal Acquisition Regulations (FAR) clauses, implementing small business subcontracting plans, and obtaining representations and certifications.

Suspension and Debarment

One of the worst things a government contractor can face is the threat or imposition of suspension or debarment, for itself or its subcontractors and suppliers. We first seek to avoid problems that can lead to such a severe penalty through counseling and compliance programs. If a violation is uncovered, we seek to minimize the risk of suspension of debarment through disclosure to the government and negotiation of the terms of any consequences imposed.