There are few--if any--absolutes in the dynamic area of mergers and acquisition. This course may not provide the perfect answer to each and every situation you face. We are confident, however, that the resources, insights, and guidance you receive will prepare you to thoroughly analyze and evaluate your opportunities and exposure in your M&A activities.

We look forward to your participation.

1. Introduction
2. The Various Types of Transactions and Their Key Characteristics
   1. Forms of Transactions
   2. Stock Purchase
   3. Asset Purchase
   4. Merger
   5. Joint Venture
   6. The Acquisition "Dance"
3. General Sources of Due Diligence Information
   1. Publicly Available Records
   2. Information Supplied by Company Management
   3. Investigative Efforts - Inquiries and Interviews
4. Preparing the Data Room
   1. Content
   2. Data Room Procedures
5. Organizing/Managing the Due Diligence Process
   1. Introduction
   2. Concept - Think Proposal Preparation
   3. Coordination/Cross-Fertilization - Procedures to Promote Sharing of Due Diligence Information
   4. Interaction With Target Company
   5. Continuation of Due Diligence Process Through Negotiation, Execution of Transaction Agreement and Closing of the Transaction
   6. The Special Issues Presented by Classified Contracts
6. Typical Representations and Warranties in a Government Contracts Transaction
   1. Financial Statements
   2. Litigation
   3. Material Contracts
   4. Intellectual Property ("IP")
   5. Employee Benefit Matters
   6. Government Contracts and Government Bids
   7. Government Furnished Property or Equipment
   8. Backlog
   9. Product Warranties
   10. Clearances
   11. Foreign Corrupt Practices Act ("FCPA")
   12. Other Issues to Consider
7. Government Contracting - Unique Issues
   1. Assignment/Novation
      1. Case law
      2. Federal Acquisition Regulation
      3. Agency implementation of the FAR
      4. When is government approval required?
         1. Assets transactions (direct transfers of government contracts)
         2. Mergers and consolidations (direct transfers of government contracts by operation of law)
         3. Stock transactions (indirect transfers)
         4. Corporate reorganizations
         5. Bankruptcies
      5. How is government approval obtained?
         1. Scope of the government's discretion to approve or disapprove a transaction
         2. Mechanics of novation agreement
      6. If no government approval
         1. Test of the government's legal authority
         2. Statutory remedy
      7. Miscellaneous issues
         1. Pending bids and proposals
         2. Subcontracts
   2. Unique Areas of Risk
      1. Inefficiencies in obtaining business
      2. Qualification and eligibility impediments to award
         1. Responsibility
         2. Unfair competitive advantage
         3. Conflicts of interest
         4. Suspension/debarment
      3. Bid protest
      4. Quasi-criminal and criminal restrictions to eligibility
         1. The statutory offenses
         2. False Statements Act
      5. Consent to subcontractors
      6. Limits on authority of government personnel
      7. Changes
         1. Standard "Changes" clauses
         2. Changes authority
         3. Contractor's duty to proceed
         4. Procedures: unilateral or bilateral
         5. Constructive changes
      8. Cost allowability rules
      9. Cost accounting rules
      10. Government property duties
      11. Termination for convenience
          1. Government's convenience termination right
          2. Termination procedures
          3. Constructive termination
          4. Contractor recovery
          5. Partial terminations
      12. Termination for Default
          1. Contract "Default" clauses
          2. Bases for termination
          3. The termination decision
          4. Contractor defenses
          5. Government remedies
          6. Contesting default terminations
      13. Determining fair prices for negotiated contracts: TINA
      14. Disclosing commercial sales practices for GSA MAS contracts
      15. Reporting price reductions for GSA MAS contracts
      16. Determining the contract value
      17. Audits of contractor records: types and scope
      18. Foreign ownership, control, influence
      19. Anti-assignment and novation
      20. Protecting intellectual property
      21. Post-acceptance liabilities
      22. Disputes process
   3. Transactions Involving Foreign Purchasers: Exon-Florio
      1. Background and basics
         1. Acquisition
         2. Foreign person
         3. Foreign control/foreign government control
         4. U.S. person
         5. Credible evidence
         6. Standards for intervention
      2. The review process
         1. Informal consultation
         2. Notice of transactions
         3. Third parties
         4. Agency notices
         5. Potential for disclosure
         6. Timetable
   4. Transactions Involving Foreign Purchasers: FOCI Restrictions
      1. The basics
      2. DoD Industrial Security Program
      3. Facility Security Clearance ("FCL")
      4. The determination of FOCI
      5. Methods of negating FOCI
      6. DOE determinations
         1. DOE rules
         2. Contract terms and flow-downs
         3. Determining eligibility for FCLs or contracts
         4. Negating methods
8. Summary and Review: A Due Diligence Methodology in Government Contractor Mergers & Acquisitions

Course Faculty

Rand L. Allen Partner in the Washington, D.C. law firm of Wiley Rein LLP • Past Chair of the American Bar Association’s Section of Public Contract Law • B.S., United States Military Academy at West Point; J.D., Georgetown University Law Center.

Kay Tatum Partner in the Business and Finance Practice of the Washington, D.C. law firm of Wiley Rein LLP • B.A., summa cum laude, Tulane University, Phi Beta Kappa; M.A. and Ph.D. (French), Rice University; J.D., cum laude, University of Houston’s Bates College of Law.

Gregory P. Cirillo Partner in the Business and Finance, Internet, and Aviation & Aerospace Practices of the Northern Virginia offices of the law firm of Wiley Rein LLP • A.B., Georgetown University; J.D., cum laude, Georgetown University Law Center.

William A. Roberts, III Partner in the Washington, D.C. law firm of Wiley Rein LLP’s government contracts practice • Former assistant to the General Counsel of the U.S. Navy • B.A., Black Hills State College; J.D., with honors, University of Iowa School of Law; LL.M., with honors, The George Washington University Law School.

John B. Reynolds, III Partner in the Washington, D.C. law firm of Wiley Rein LLP’s internet, international, and government affairs practices • Particular expertise in handling international investment transactions, acquisitions, joint ventures and privatizations • B.A., magna cum laude, Williams College, Phi Beta Kappa; J.D., Yale Law School.

Norman E. Duquette Accounting Consultant in the Washington, D.C. law firm of Wiley Rein LLP’s government contracts practice • Experienced in a wide variety of accounting and contract subjects • Formerly a senior auditor for twenty years at the Defense Contract Audit Agency • B.S., University of Vermont.