DCSIMG

Government Contracts Practice

Government contracts, and the processes involved in the award and performance of those contracts, play a major role in events of great significance to our country. During the U.S. military actions in Yugoslavia and Iraq, the American public became intimately familiar with advanced air weapons systems such as Patriot missiles, Stealth bombers, and "smart-guided" cruise missiles. Yet before any of those weapons systems could become a working part of the military, defense contractors were required to complete a complex process of bidding, negotiating, awarding, and implementing one or more government contracts for each system.

During the 1999 crisis in Kosovo, reporters revealed that the U.S. suffered a shortage in its supply of cruise missiles because the government had miscalculated the number of missiles needed for a sustained air war. The U.S. government had contracted with defense contractors for only a limited supply of the remarkably accurate cruise missiles, which brought to public awareness the importance of the many government contracts behind the scenes of the U.S. military action. Such contracts involve not only defense contractors, but also medical and health care delivery systems and numerous other kinds of private businesses.

Attorneys who specialize in government contracts work represent clients in all aspects of negotiating and securing contracts with the government, as well as in disputes that arise out of these contracts. Their practice therefore includes both client counseling and litigation. While their clients are often U.S. companies such as defense contractors and health care organizations, they may also represent foreign clients dealing with U.S. government agencies, as well as U.S. clients dealing with foreign governments. They may also work for federal, state, or local governments or agencies reviewing and negotiating contracts with outside vendors.

Private companies that wish to bid for contracts with federal, state, or local governments must meet a host of regulations, such as compliance with special U.S. labor laws, before they are eligible to enter into such contracts. Attorneys specializing in government contracts guide their clients in submitting a proposal to do the work or supply the goods sought by the government, whether those goods are planes, ships, trucks, or coffee makers, and then help their clients in the contract negotiation process with the government. If a company is unsuccessful in its bid for the government work, the attorney may assist the client in protesting the bid. If the company is successful in the bidding for the work, it may have to defend against allegations from other companies that the bid was gained unfairly or inappropriately. Government contract attorneys provide advice at every stage of this litigation, which may be heard as an administrative hearing in the U.S. General Accounting Office (GAO), in federal district court, or in the Court of Federal Claims.

Government contract attorneys may also advise their clients concerning issues relating to performance of the contract. For example, the government has certain rights to terminate the contract, or the client may run into cost overruns in completing the work for the government. These issues, too, may result in litigation. Numerous submissions to the government must be made throughout the performance process. They may also assist clients with the many complex issues that arise in performing the contracted work in compliance with environmental regulations and export regulations.

In addition to assisting with performance issues, government contracts attorneys may assist clients with the acquisition, divestiture (selling off), or financing of companies that perform government contracts and with the special circumstances involved as a result of the existence of such a contract.

Another growing area of work for government contracts attorneys involved what are called qui tam actions under the False Claims Act. In a qui tam action, an employee of the company under the contract, who is known as a "whistle-blower," alleges that his or her company has committed fraud against the government and brings suit against the company on behalf of the government (see the Legislative Practice chapter for more information on whistle-blowers). The False Claims Act allows a whistle-blower to recover up to 30% of what the government collects in such an action, a measure that encourages whistle-blowers to pursue such actions. Government contracts attorneys represent the companies accused of wrongdoing and defend against the claim.

Attorneys specializing in government contracts work may also become involved in international issues. They may represent international defense contractors on matters related to foreign military sales and technology transfer, or they may represent defense contractors that sell to foreign governments and foreign companies. Numerous questions relating to export control laws may arise in such circumstances. Government contracts attorneys may also handle issues that arise out of the ownership or control of U.S. companies by foreign governments or foreign corporations.

Reproduced from The Official Guide to Legal Specialties with permission. (c) 2000 Thomson Reuters/West. For additional information on this publication please visit http://west.thomson.com/products/law-students. Copyright granted via e-mail by Donna Gies, September 16, 2008.