Government Contracts and Procurement Policy U.S. Practice Expanded Description

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1 Government Contracts and Procurement Policy U.S. Practice Expanded Description In the United States, the government contracts and procurement policy practice provides cradle to grave assistance to federal, state, and local government contractors in a wide variety of regulatory, transactional, and litigation matters. K&L Gates lawyers assist clients from Boston to Seattle and from Washington, D.C. to Silicon Valley. We understand that our clients require real-time advice and imaginative legal and business solutions that lessen regulatory and other compliance burdens. The team advises clients on virtually every aspect of government contracts, including highly specialized U.S. General Services Administration (GSA) and Department of Veterans Affairs (VA) contracts for a variety of commercial products and services. The firm represents Fortune 100 companies, small businesses, and startups in their dealings with federal, state, and local governments. Our clients include technology companies, defense and aerospace contractors, service contractors, research and development contractors, and government suppliers of a variety of other systems and products to civilian and defense agencies and prime contractors. Areas of Practice Procurement Proposal and Contract Counseling/Negotiation Successful government contract performance begins prior to a government contract award. The proposal phase of a procurement is critical not only for competitive reasons, but also for establishing the scope of future government contract obligations. K&L Gates lawyers frequently serve clients by analyzing solicitations and providing guidance on related proposal matters. Our early-phase involvement can minimize the risks that can come with contract award and can reduce the risks associated with contract performance. We also assist prime contractors and subcontractors in drafting related teaming agreements, subcontracts, reseller/distribution agreements, and the like. When there is trouble during contract administration and performance, the K&L Gates government contracts team provides practical advice that facilitates resolution of performance issues. Bid Protests K&L Gates lawyers have a wide variety of experience in advising on protests concerning solicitation defects or contract award decisions. We routinely pursue and defend protests in the U.S. Government Accountability Office (GAO), the U.S. Court of Federal Claims, and before federal agencies. Additionally, we handle protests involving state and local governments and agencies in a variety of jurisdictions. Claims and Disputes In some cases, disputes concerning contract and subcontract performance are unavoidable. When situations like this occur, K&L Gates lawyers can facilitate monetary recoveries. Over the past three decades, we have prepared and negotiated many requests for equitable adjustments (RFEAs) and claims under government contracts and

2 subcontracts. Our goals in these circumstances are the same as our clients prompt resolution, maximum recovery, and minimum expense. We recognize that a well-drafted and supportive RFEA minimizes the prospects of litigation with the client s present, and perhaps, future customers. When termination of a contract occurs, we advise contractors on termination settlement proposals that permit them to recover incurred performance costs, reasonable profits on the work performed, plus legal, consulting, and other expert fees incurred in preparing the termination proposal. K&L Gates government contracts litigators have handled disputes before a variety of tribunals including boards of contract appeals, the U.S. Court of Federal Claims, and similar state boards and courts. When appropriate, we utilize alternative dispute resolution techniques such as mini-trials and other specialized processes. Our litigation experience encompasses a diverse range of issues, including changes, cost allowability matters, cost accounting standards compliance, defective pricing, defaults, defective specifications, interpretations of contract language, interference by government officials with the work, and waivers. GSA/VA Multiple Award Schedule Contracts Under the GSA's multiple award schedule (MAS) program, a variety of U.S. government agencies purchase hundreds of billions of dollars of hardware, software, pharmaceuticals, medical devices, scientific equipment, and other commercial items, as well as a variety of information technology, consulting, and other professional services. K&L Gates counsels both mature and emerging companies on the full range of legal issues associated with the MAS program. Our team has more than 25 years of direct and substantial experience in MAS matters and related federal vehicles such as government-wide acquisition contracts (GWACs) and blanket purchase agreements (BPAs). We work in every aspect of MAS contracting proposal preparation, contract compliance issues such as the payment of industrial funding fees, the Price Reductions Clause and the Trade Agreements Act, and audits, investigations, and civil fraud claims. We have similar experience in proposal preparation, contract award, and performance issues for analogous state and local programs. Audits, Investigations, Fraud Litigation, and Mandatory Disclosures The audit and investigatory powers of the federal government are substantial and pose great dangers for the unwary contractor. K&L Gates lawyers represent contractors extensively in a variety of audit settings, including audits by the GSA, VA, the Defense Contract Audit Agency, and other similar entities. In order to resolve concerns in a prompt and effective manner, we encourage full cooperation and careful management of audit interface and response activities. K&L Gates lawyers also assist government contractors in a variety of matters involving allegations of civil or criminal procurement fraud. We conduct internal investigations to examine potential procurement misconduct and when appropriate, we work with clients to make suitable voluntary disclosures and to resolve any issues arising from such investigations or disclosures. We frequently defend government contractors in qui tam (whistleblower) and other proceedings under the Federal Civil False Claims Act and similar state statutes, as well as in criminal proceedings.

3 Research and Development (R&D) Contracting and Related Intellectual Property Matters A fundamental issue that can arise in many government contracts (as well as in indirect government arrangements such as government reseller agreements) is the proper treatment and allocation of patent rights, rights in technical data, and rights in software. The urgency of this issue has been heightened by statutory and regulatory developments such as the Federal Acquisition Streamlining Act, the Clinger-Cohen Act, other statutes implicating intellectual property interests, and regulatory provisions implementing all of these laws. In addition, the increasing use of special research and development agreements such as OTs and TIAs requires focused knowledge of the range of intellectual property provisions and rights that can be negotiated in such agreements. K&L Gates lawyers have that knowledge and experience. K&L Gates government contracts practitioners focus on dealing with the intellectual property issues that arise in contracting with the government. In addition to its government contracts practice, K&L Gates has a nationally recognized, robust, and fullservice intellectual property practice. As a result, the firm is eminently suited to handle the full range of intellectual property issues that confront any government contractor. Debarment and Suspension Debarment and suspension can amount to a death knell for companies that do business directly or indirectly with government agencies. K&L Gates lawyers have extensive experience in dealing with the plethora of debarment and suspension regulations and proceedings that exist throughout the federal government and at state and local levels. Our lawyers have negotiated debarment agreements with, or appeared in debarment and suspension proceedings at, the GSA, 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. Ethics and Compliance Assessments and Education Training K&L Gates understands that prevention is the best medicine. That's why K&L Gates lawyers have designed, implemented, and conducted compliance reviews for Fortune 500 companies and small businesses alike. These programs are tailored to each client's particular needs and assess corporate compliance with the laws, regulations, policies, and procedures applicable to government contracting. We formulate recommendations for new procedures, policies, and programs to promote compliance, and assist our clients in implementing those measures. We also offer ethics and compliance education and training. Working with the client s own ethics organization or with expert consultants in the field, K&L Gates government contracts lawyers can prepare and deliver training to reinforce corporate ethics principles or educate on substantive legal topics. In addition, K&L Gates government contracts lawyers help clients develop codes of ethics and conduct to comply with Federal Acquisition Regulation requirements. State and Local Contracting While state and local procurement requirements are challenging, they offer a multitude of opportunities for public entities and private businesses. K&L Gates lawyers help clients navigate through the many facets of state and local procurement laws, regulations, policies, and procedures. We regularly counsel and represent both public and private clients on state and local bidding and contract issues.

4 Our lawyers advise public sector state and local clients on a variety of procurementrelated issues, including requests for proposals and invitations for bids, contract counseling, bid protests, project close-outs, public records requests, litigation and dispute resolution, and procurement policy issues. We also represent private-sector clients doing business with state and local entities on procurement-related issues, including negotiations with state procurement authorities, proposal preparation contract counseling, compliance with state and local laws and regulations, bid protests, and litigation and dispute resolution. We assist clients in understanding other substantive legal obligations in the state and local arenas on a variety of topics such as debarment and suspension, procurement integrity, procurement/lobbying restrictions, and gifts and gratuities. Due Diligence/Mergers and Acquisitions K&L Gates' government contracts team brings together a comprehensive set of legal skills when advising clients that are acquiring, merging with, or being purchased by entities that hold government contracts. Because the performance of public sector contracts requires careful compliance with a multitude of unique federal and state laws, executive orders, and contract terms and conditions, and may contain potential liability risks, an acquiring company must identify and ensure that the target company has properly performed and is properly performing its government contracts. Similarly, target companies require assistance in assessing the potential issues associated with mergers and purchases. We regularly assist clients in a full spectrum of these areas. International Procurement Issues In today's global economy, 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 and 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. Non-Procurement Agreements (Grants, Financial Assistance Agreements, CRADAs, OTs, and TIAs) In recent years, the federal government has become increasingly innovative in implementing procurement arrangements. Federal agencies are now more receptive to the use of alternative agreements that reduce socioeconomic compliance burdens, permit flexibility in the treatment of intellectual property rights and funding, and generally eliminate the need to comply with complex government regulations concerning cost accounting and allowability. We frequently work with clients in the drafting and negotiation of cooperative research and development agreements (CRADAs), other transactions (OTs), and technology investment agreements (TIAs). In particular, OTs are fast becoming the agreements of choice for companies that want to work with the government in research and development settings without the need for complex government compliance systems or processes. Small and Small Disadvantaged Business Issues K&L Gates government contracts lawyers regularly advise small and small disadvantaged businesses that perform or seek to perform under special government contract programs, including the 8(a) Business Development Program, HUBZone Empowerment Contracting Program, Women-owned Small Businesses, Veteran-owned

5 Small Businesses, Service-disabled Veteran-owned Small Businesses, and Native American Businesses. We advise clients on size issues, set-aside opportunities, program eligibility, subcontracting plans, negotiations, protests, and litigation. We counsel small businesses so they can accomplish their business goals while at the same time remaining eligible for the various government contract programs. In addition, we regularly advise large businesses and prime contractors with respect to small business issues, including subcontracting plans, subcontracts, and teaming agreements. Foreign Sourcing Restrictions Foreign sourcing compliance, especially compliance with the Trade Agreements Act, is a matter of great visibility within the Department of Justice and is a frequent topic of investigation by agency inspectors general. K&L Gates government contracts lawyers frequently assist clients with analyzing foreign sourcing requirements in solicitations including the Buy American Act, Trade Agreements Act, and Berry Amendment requirements. We advise clients on how to determine whether a particular product complies with particular foreign sourcing requirements and on implementing proper systems to facilitate compliance. In addition, we have assisted clients with obtaining both binding and non-binding rulings from U. S. Customs regarding the country of origin of a particular product. Lastly, we have defended numerous investigations and False Claims Act litigation on this complex issue.