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Government Contract Litigation
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Government Contract Litigation Strategy - Settlement - Trial

Litigation with the Federal Government is one of company management's hardest decisions. The Government is often one of your best customers. But if you understand the entire process, litigation with the Government can become manageable-and a part of your overall business options.

When contractors have important issues arise that cannot be solved with their Contracting Officers, litigation may be the next step in resolving disagreements. Since over 90% of all litigation is settled before trial, it is a business necessity to know how this federal litigation process can be turned to your advantage- whether you work for a prime contractor, subcontractor, or the Federal Government.

A unique set of Boards of Contract Appeals, Agency Trial Attorney's Offices and the Court of Federal Claims-all guided by the Contract Disputes Act-make up the system for decision making in Government Contract disputes. A Government contractor must have a strategy to use this system. The strategy must be aimed at getting a proper settlement, but also toward preparing for trial to force a settlement. The faculty will spend two days showing you how to accomplish these goals at the lowest cost possible.

A Government contractor has only two choices when a contract dispute reaches an impasse with the Contracting Officer - accept the Contracting Officer's positions or press on to the next step in the resolution process. The emphasis in this course will be on strategy and settlement, with trial as the last resort. The faculty will work through numerous real-world problems and examples to show you successful approaches and how to avoid mistakes.

The Course Curriculum

ACTIONS TO EXHAUST SETTLEMENT OPTIONS BEFORE LITIGATION

  1. The Contract Disputes Act (CDA) Mandatory Requirements
    1. Contractor Claims; REAs; Disputes
    2. Detailed Content Requirements
    3. The Certification Process
    4. Time Consumption for Settlements
    5. Government Claims
    6. Debt Collection Requirements- Government Discretion

  2. What Causes a Contracting Officer to Resolve Claims and Disputes without Litigation
    1. The Merits
    2. Program Issues
    3. Agency/Congressional Politics
    4. Claim Bases - Basic vs. Complex
    5. Audit Considerations
    6. Honesty, Fairness and Transparency by Both Parties Are Key Drivers

  3. What Causes Settlement Impasses with the Contracting Officer: How to Prevent Them
    1. Technical Personnel Positions-lack of knowledge of contract and proposal requirements
    2. Audit Reports
    3. User Distress - Confusion as to Product/Service
    4. Preventing Bad Communication at All Levels
    5. Too Large/Too "Broken" a Procurement
    6. The Positive Side of an Impasse - A New Chance
  4. Settlement Approaches to Resolve Contracting Officer Settlement Impasse
    1. Supplemental Claim Documents
    2. Position Papers
    3. Senior Agency Meetings
    4. Congressional Approaches - Do They Work?
    5. "Threatening" Litigation
    6. Agency Internal Reviews - "Claims" Boards
    7. Time Consumption
    8. Using the CDA 60 day Rule for Final Decisions
    9. Appealing for "Refusal to Issue" a Contracting Officer's Final Decision- strategy issues
    10. Alternative Dispute Resolution (ADR) Presentations
      - In-house Experts vs. Outside Experts: Trade-Offs
      - Senior Agency/Contractor Personnel
      - Choice of Mediator
      - Range of Agency Programs
  5. A Strategy for Using The ADR Process
    1. Evaluation of Choices - Real Life Examples/Problems
    2. Outside vs. Inside Experts
    3. Sticking to the Plan but Being Flexible
    4. One Spokesperson
    5. One Contract's Person - Records
    6. One Source of Information
    7. No Finger Pointing - Facts Only
    8. . "This is a Bad Situation for Everyone" Approach
    9. Making Cost Estimates - Value Trade- Offs
  6. Dealing With Subcontractors Affected by Claims/Litigation
    1. Using and Negotiating Joint Appeal Agreements (Examples)
    2. Pre-Negotiation strategy and planning
    3. Short vs. Long Forms
    4. Contract Types Approach
    5. Audit Rights and impasses
    6. Impasses with getting the sub "on board"
    7. Turner Doctrine Approach
  7. Other Overriding Issues to Deal With
    1. Fraud, Waste, and Abuse Potential
    2. Sarbanes-Oxley Disclosures
    3. Press Relations
    4. Customer Relations

THE LITIGATION DECISION PROCESS

  1. Initial Strategy Drivers and Decisions
    1. The Trial Attorney's Office
    2. The Justice Department
    3. Choice of Law Issues - Court of Federal Claims vs. Boards-Examples and Problems
    4. Declaratory Judgment Availability- Are you prepared to pay the Price?
    5. Maritime Cases (District Court & Boards only)
    6. Summary Judgment Strategy
    7. Looking for and Predicting Settlement Windows
    8. Time for Decisions - Board vs. Court
  2. Real Litigatiion Cost Considerations
    1. Design Case to Cost?
    2. Costs to Other Side? Does the Government respond?
    3. Offers of Judgment - Formal vs. Informal
    4. Abridged Approach to Case - Planning Exit Strategies
    5. Government's Approach as Plaintiff or Defendant
    6. Company Resource Impact
    7. Future Business Receipts
    8. Equal Access to Justice; Chances for Recovery
  3. The Strategy of Initial Filings
    1. File Complaint and Discovery Together?
    2. Need Answers for Summary Judgment
    3. Handling Government Time Extension Requests
  4. Audits as Part of Litigation
    1. Contractor Control of the Process
    2. Motion to Board/Court
    3. The Auditor Should Assist Both Parties
    4. Exit and Entrance Interviews with Auditing Entity-Require it
  5. Witnesses
    1. Choosing and Using former employees
    2. Who Not to Choose
    3. Evaluating the Government's Options
  6. Requests for Admissions
    1. A Useful Tool
    2. Proper Drafting (Examples)
    3. Follow-Up sets are required
  7. Interrogatories
    1. "State Your Legal Positions on . . ."
    2. Examples for typical cases
    3. Proper Drafting
  8. Depositions
    1. The Highest Cost Item
    2. Limiting
    3. In Sequence
    4. Doing Without and Fixed Price approach
  9. Opening Settlement Discussions; Without Trial Delay
    1. Times To Do So
    2. ADR - Board, Court Proceedings; How to Use
    3. Judge Participation - Examples
    4. High Level Manager's Meetings
  10. Trial of Case (If Settlement is not Possible)
    1. Bench Trials
    2. Short Presentations
    3. Cross-Examination Preparation
    4. Opening/Closing Statements
    5. Post-Trial Briefing